June 29, 2022

Volume XII, Number 180


June 29, 2022

Subscribe to Latest Legal News and Analysis

June 28, 2022

Subscribe to Latest Legal News and Analysis

June 27, 2022

Subscribe to Latest Legal News and Analysis

Protecting Unvaccinated and Otherwise At-Risk Workers in Workplaces Not Covered by OSHA’s COVID-19 Emergency Temporary Standard for Healthcare

OSHA has updated its guidance on workplace protections for unvaccinated and otherwise at-risk workers who are not covered by the COVID-19 Emergency Temporary Standard (ETS) for Healthcare. The updated guidance, issued August 13, 2021, reflects the Centers for Disease Control and Prevention (CDC) mask and testing recommendations for fully vaccinated people issued on July 27 (further updated on August 19) and its guidance on testing that came out on August 2. The OSHA guidance also provides recommendations for safeguarding specific workplaces that are considered higher-risk, including manufacturing facilities, meat, seafood, and poultry processing plants, high-volume retail and grocery workplaces, and assembly line operations (including in agriculture).

The OSHA guidance and CDC recommendations emphasize the importance of maintaining safety procedures and protocols for vaccinated people, who may spread COVID-19 despite being asymptomatic, as well as for unvaccinated people.

CDC and OSHA both recommend that all individuals, regardless of vaccination status, wear masks in public indoor settings in areas of high or substantial transmission. They note that fully vaccinated individuals may appropriately choose to wear masks in settings with any level of transmission if they or members of their household are at increased risk of severe disease or not fully vaccinated. CDC also recommends that all teachers, staff, students and visitors of schools wear masks indoors, regardless of vaccination status.

OSHA’s guidance restates the following general protective measures for all workplaces, with some revisions to reflect the latest mask and testing recommendations:

  1. Facilitate employees getting vaccinated.

  2. Instruct workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work.

  3. Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.

  4. Provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE.

  5. Educate and train workers on workplace COVID-19 policies and procedures using accessible formats and in languages they understand.

  6. Suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission.

  7. Maintain ventilation systems.

  8. Perform routine cleaning and disinfection.

  9. Record and report COVID-19 infections and deaths.

  10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.

  11. Follow other applicable mandatory OSHA standards (e.g., OSHA requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, employee access to medical and exposure records, and the healthcare COVID-19 ETS, where applicable).

The CDC testing guidance recommends that unvaccinated persons quarantine for 14 days following a close contact with a person infected with COVID-19, or for the period established by local public health authorities. (The OSHA guidance defines “close contact” to mean “where unvaccinated and otherwise at-risk workers are working close to one another, for example, on production or assembly lines or in busy retail settings. Such workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.”) 

However, the CDC guidance recognizes that any quarantine shorter than 14 days balances reduced burden against a small possibility of increasing the spread of the virus. It makes recommendations on when unvaccinated persons may return to work in less than 14 days with only slightly more risk than a full 14-day quarantine. The OSHA guidance adapts these recommendations. Taking the two together, the guidance recommends for an unvaccinated person who has had a close contact with someone with COVID-19:

  • Remove the person from the office. Tell the person to stay home.

  • Testing option:

    • Have the person tested immediately after learning of the close contact.

    • If the immediate test is negative, have the person retested 5-7 days after the close contact, and again if the person experiences symptoms. 

    • If the immediate and follow-up tests are negative, and the person has not experienced symptoms, allow the person to return to the office 7 days after the close contact.

  • No testing option:

    • If the person is not tested, the person should quarantine for at least 10 days. 

    • After that period, the person may return to the office so long as no symptoms have developed. 

    • The person should continue monitoring for symptoms for a total of 14 days after the close contact.

  • If at any time the person experiences symptoms, the CDC guidance says, “they should immediately self-isolate and contact the local public health authority or their healthcare provider to report this change in clinical status …. The presence of any symptoms would lead to diagnostic testing and management as infected if the test result were positive.”

For fully vaccinated persons who have had a close contact, the CDC guidance recommends that they be tested 3-5 days following the date of their exposure and wear a mask in public indoor settings for 14 days or until they receive a negative test result. They should isolate if they test positive. If they comply with this testing recommendation, they do not need to be quarantined or restricted from work. The OSHA guidance advises quarantining any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive, and all workers with COVID-19 symptoms. It does not recommend quarantine for fully vaccinated workers following a close contact if they do not exhibit symptoms or test positive.

In addition to these general measures for all workplaces, OSHA’s updated guidance expands its prior list of additional recommended protective measures for higher-risk workplaces with mixed vaccination status workers. For example, for meat, seafood, and poultry processing plants, manufacturing facilities, and assembly line operations, OSHA clarifies that barriers are not a replacement for worker use of face coverings or physical distancing. If barriers are used where physical distancing cannot be maintained, they should be made of a solid, impermeable material, like plastic or acrylic, that can be easily cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used.

Employers should continue to monitor OSHA and CDC developments to ensure that unvaccinated and other at-risk workers are protected, and should consider implementing the recommended best practices.

© 2022 Beveridge & Diamond PC National Law Review, Volume XI, Number 237

About this Author

Jayni A. Lanham Environmental, Health, & Safety Attorney Beveridge & Diamond Baltimore, MD

Jayni draws on her experience with environmental, health, and safety (EHS) regimes to help clients assess risk, develop compliance strategies, and build strong legal and technical cases when faced with litigation or enforcement.

Jayni counsels companies in a variety of industries on regulatory compliance and represents them in litigation and enforcement proceedings related to a broad range of federal and state EHS laws. Jayni is a leader of Beveridge & Diamond’s Occupational Safety and Health group and has significant experience advising clients on compliance...

Heidi P. Knight Environmental, Health & Safety Attorney Beveridge & Diamond Boston, MA

Heidi counsels companies nationwide on federal and state environmental, health and safety (EHS) compliance, auditing, and due diligence. 

Heidi has significant experience advising clients across a range of industry sectors on federal and state EHS regulations. She applies her diverse expertise in EHS regulations to help companies comply with requirements in a practical manner, mindful of the companies’ objectives and costs.

EHS Audits, Risk and Compliance Program Assessments

Heidi is a leader of the firm’s EHS Audits, Risk and Compliance Program...

Mark N. Duvall Chemicals Regulation Attorney Beveridge & Diamond Washington, DC

Mark has over two decades of experience working in-house at large chemical companies. 

His focus is product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.

He leads the firm’s Chemicals group. His experience under the Toxic Substances Control Act (TSCA) includes enforcement actions, counseling, rulemaking, advocacy, and legislative actions. Since the enactment of TSCA amendments in 2016, he has been heavily involved in advocacy, compliance activity, and litigation arising from EPA's implementation...

Sarah A. Kettenmann Environmental Attorney Beveridge & Diamond New York, NY

Sarah uses her knowledge of environmental law and the physical sciences to help clients solve complex problems in a conservation-minded manner.

She maintains a diverse environmental practice, which includes litigation matters involving toxic torts and products liability and class action litigation concerning environmental and regulatory claims. Her regulatory practice includes advising clients on compliance with, and enforcement of, land use restrictions and remediation, and due diligence for waste facility permits under federal and state statutes. She also counsels clients on...