On August 13, 2021, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a new update to its standing Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). The Guidance, which is intended for non-healthcare employers, sets forth OSHA’s most up-to-date recommendations and requirements regarding workplace safety in connection with the COVID-19 pandemic, and is routinely updated to reflect scientific developments and best practices. However, the Guidance does not contain mandatory standards or regulations, and creates no new legal obligations. Nevertheless, employer compliance with the Guidance may assist in discharging an employer’s obligation to provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm” under the Occupational Health and Safety Act.

Most significantly, the updates to the Guidance incorporate the Centers for Disease Control’s (“CDC”) July 27, 2021 mask and testing recommendations for fully vaccinated people. Specifically, the Guidance reflects the CDC’s recommendation that even fully vaccinated people wear a face covering in public indoor settings if they are in an area of substantial or high COVID-19 transmission, or if they have had known exposure to someone with COVID-19 and have not had a subsequent negative test three to five days post-exposure.

The revised Guidance further recommends that employers “engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19.” Measures approved by OSHA include:

1. Facilitating vaccination, including offering paid time off for employees to get vaccinated and recover from any side effects. Under New York law, employers are legally obligated to offer employees up to four hours of paid time off per vaccine injection.

2. Implementing policies that require employees to either become vaccinated or undergo regular COVID-19 testing, in addition to mask-wearing and physical distancing, if they remain unvaccinated.

3. Requiring infected, unvaccinated workers who have had close contact with someone who has tested positive for COVID-19, along with all employees with COVID-19 symptoms, to refrain from entering the workplace.

4. Requiring at least six feet of physical distancing in all communal work areas for unvaccinated and other at-risk workers. To accomplish this goal, the Guidance states that employers may also consider implementing measures to limit the number of unvaccinated or other at-risk workers in one place at any given time, including teleworking, staggered or rotating shifts, remote service delivery or flexible meeting and travel options for unvaccinated or at-risk employees.

5. Providing face coverings to all employees, regardless of vaccination status.

6. Educating and training employees on COVID-19 policies and procedures using accessible and varied formats and multiple languages. Training should cover basic facts about COVID-19, including how it is spread and the importance of physical distancing, along with any workplace policies and procedures in place to protect employees from COVID-19.

7. Suggesting or requiring that unvaccinated customers, visitors or guests wear face coverings in “public-facing” workplaces, including retail establishments. OSHA also recommends that all customers, visitors or guests wear face coverings in public, indoor settings in areas of substantial or high transmission, regardless of vaccination status.

8. Maintaining adequate indoor ventilation systems.

9. Performing routine cleaning and disinfection, especially in the event that someone in the facility in the previous twenty-four hours is suspected of having or confirmed to have COVID-19.

10. Appropriately recording and reporting COVID-19 infections and/or deaths. Per OSHA regulations, employers are required to report work-related cases of COVID-19 on OSHA Form 300 logs if the following requirements are met: (i) the case is a confirmed case of COVID-19; (ii) the case is work-related, as specified in 29 C.F.R. § 1904.5; and (iii) the case involves one or more relevant recording criteria specified in 29 C.F.R. § 1904.7, such as medical treatment or time away from work. Otherwise recordable adverse reactions to COVID-19 vaccinations need not be recorded on OSHA Form 300 logs until at least May 2022.

11. Implementing protections from retaliation and creating an anonymous process for employees to voice concerns about COVID-19-related hazards.

In addition, the update to the Guidance identifies risk factors in the work environment that could enhance the spread of COVID-19 among unvaccinated, mixed-vaccination or at-risk workforces, including: (i) spaces that enable close and/or prolonged contact, such as in break rooms, areas where employees clock in or out, or locker rooms; (ii) shared employer-provided transportation, such as ride-share vans or shuttles; and (iii) communal housing or living quarters. The updated Guidance recommends steps that employers can take to mitigate risks associated with these risk factors, including staggered arrival and departure times, visual cues, mandatory masking, improved ventilation, and limiting the number of employees who share transportation.

Further updates to the Guidance are anticipated in connection with additional scientific developments and revised information provided by the CDC.

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