OSHA COVID-19 Employer Guidance Focuses on Unvaccinated and “At-Risk” Workers

We previously reported on OSHA’s COVID-19 guidance for employers, which has continued to evolve over the last 15 months in response to changing scientific and epidemiological information. On June 10, 2021, OSHA again updated its guidance, with a new emphasis on protections for unvaccinated and otherwise “at-risk” workers. The updated guidance accompanies OSHA’s issuance of an Emergency Temporary Standard requiring employers in the health care and related industries to take certain precautions to protect employees from COVID-19.

In the new guidance OSHA states: “Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.”  On the other hand, for unvaccinated and “at-risk workers,”[1] OSHA recommends implementing multiple layers of controls similar to what the agency previously recommended for all workers.  These include separating from the workplace all infected people, all people experiencing COVID symptoms, and any unvaccinated people who have had a close contact with someone with COVID-19; implementing physical distancing; maintaining ventilation systems; and properly using face coverings or personal protective equipment (PPE) when appropriate.  OSHA recommends providing paid time off for employees to get vaccinated.

The updated guidance also reminds employers about mandatory OSHA standards that, while not COVID-specific, may apply in workplaces where there is a risk of exposure to the virus, including PPE standards, protection from bloodborne pathogens, and employer access to medical and exposure records.  Employers are also required to continue recording work-related cases of COVID-19 infection and reporting hospitalizations and fatalities arising out of work-related COVID-19 transmission.

The updated guidance specifically refers to Section 5(a)(1) of the OSH Act, known as the “General Duty Clause.” The General Duty Clause requires employers to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. Its reference in the updated guidance confirms that, while the guidance is not binding, failure to follow it may subject an employer to a citation under the General Duty Clause violation.

[1] OSHA defines “at-risk workers” to include those with conditions on a list published by the Centers for Disease Control and Prevention.