The Occupational Safety and Health Administration (“OSHA”) had a busy summer. In June, OSHA issued Emergency Temporary Standards to regulate the healthcare industry’s approach to COVID-19. Those were the first Emergency Temporary Standards OSHA has issued since 1983 and only the second Emergency Temporary Standards OSHA has issued in its forty-year history. On August 16, OSHA also published updated workplace guidelines for COVID-19 and the mostly unchecked spread of the Delta variant. Employers in New Hampshire would do well to consider these guidelines.
Unlike the Emergency Temporary Standards, OSHA’s updated pandemic guidelines are not binding on businesses. They are guidelines, not regulations. But keep in mind that, while the pandemic guidelines do not have the force of law, employers have a general duty to “furnish to each of [their] employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to [their] employees.” Unchecked spread of the coronavirus in an office setting certainly qualifies as a “hazard” both causing ad likely to cause death and serious injury. So far, the Biden administration has tripled the use of the general duty clause in its investigative and enforcement practices. At a minimum, businesses should thoughtfully consider both the original pandemic guidelines from January 2021 and the updated pandemic guidelines from August 2021 and then decide what makes sense for the business given its field of industry, the vaccination rate of the workforce, telework possibilities, and level of community spread.
Highlights from OSHA’s updated pandemic guidance include the following:
- Recommends that fully vaccinated workers who have been exposed to the coronavirus should wear masks for fourteen days unless they have a negative coronavirus test at least 3-5 days after the known contact.
- Recommends that all workers, including those fully vaccinated, should wear face masks in indoor public settings where transmission of the virus is “substantial or high”. Whether an area is one of “substantial or high” transmission is determined by the CDC and published on the following website, https://covid.cdc.gov/covid-data-tracker/#county-view. As of the publication of this blog post (September 9, 2021) Rockingham County has a “high” decree of community transmission. OSHA’s updated mask guidance is intended to protect both vaccinated and unvaccinated workers alike, particularly has break-through cases become more prevalent across the country. Under OSHA’s guidance, the mask recommendation extends to all customers, guests, or vendors of the business as well.
- Encourages employers to adopt policies requiring or incentivizing vaccines (within the limits of Title VII and the ADA) or to require, in the alternative, regular COVID-19 testing for unvaccinated employees. Improving vaccination rates is part of OSHA’s multi-layered approach to controlling the pandemic. Other controls in the multi-layered approach include masking, social distancing, teleworking, and regular testing.
- Adopts CDC guidance and recommends universal indoor masking for all teachers, staff, and students in k-12 schools.
In addition to reviewing and implementing, where appropriate, OSHA’s updated pandemic guidelines, businesses should monitor CDC guidance. OSHA intended the updated guidelines to align with CDC recommendations and will likely adjust the guidelines as CDC policy changes.
With vaccines available and a proven approach to controlling community spread established, this winter will not likely resemble last winter. Still, the Delta variant has caused and is causing a significant uptick in infections, hospitalizations, and deaths across the United States. OSHA, through the combination of its guidelines and increased attention to the “general duty” clause, has made clear that employers must play a role in counteracting the virus’s resurgence.
If you have questions about OSHA’s guidelines, establishing a vaccine program in the workplace, or workplace policies concerning the pandemic generally, it is important to connect with a labor and employment attorney who can help you navigate the regulatory labyrinth and adopt policies that work for your business.