• Art Goguen

Protecting Workers from COVID-19: New OSHA Guidance

The Occupational Safety and Health Administration (OSHA) recently released new guidance for unvaccinated or otherwise at-risk workers. This guidance outlines appropriate steps to prevent exposure and infection.


According to OSHA, this guidance is not a standard or regulation, and creates no legal obligation for employers. However, it is intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or are likely to cause serious physical harm.


To Mask or Not to Mask at Work?

OSHA points out that the CDC's Interim Public Health Recommendations for Fully Vaccinated People explains that, under most circumstances, fully vaccinated people need not take all the same precautions that unvaccinated people should take.


For example, the CDC advised that most fully vaccinated people can resume activities without wearing masks, except where required by laws, rules, and regulations, including local business and workplace guidance.


However, the CDC suggests that people who are fully vaccinated but still at-risk due to immunocompromising conditions should discuss the need for additional protections with their healthcare provider. The CDC also continues to recommend precautions for workers in certain transportation settings.


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.”


The updated guidance focuses only on protecting unvaccinated or otherwise at-risk workers. This guidance contains recommendations as well as descriptions of mandatory safety and health standards, the latter of which are clearly labeled throughout as "mandatory OSHA standards."


Who Are "At-Risk" Workers?


Some conditions, such as a prior transplant, as well as prolonged use of corticosteroids or other immune-weakening medications, may affect workers' ability to have a full immune response to vaccination. See the CDC's page describing Vaccines for People with Underlying Medical Conditions, and further definition of People with Certain Medical Conditions.


OSHA recommends that employers should consider taking steps to protect these at-risk workers as they would unvaccinated workers, regardless of their vaccination status.


The Roles of Employers and Workers in Responding to COVID-19

Under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm, under the Act's General Duty Clause, Section 5(a).


OSHA states that, except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.


Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.


Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

  1. Grant paid time off for employees to get vaccinated.

  2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of possible transmission.

  3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. Distances of at least 6 feet are recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces.

  4. Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers.

  5. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.

  6. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand.

  7. Suggest that unvaccinated customers, visitors, or guests wear face coverings.

  8. Maintain ventilation systems. Some measures to improve ventilation are discussed in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace. These recommendations are based on ASHRAE Guidance for Building Operations During the COVID-19 Pandemic.

  9. Perform routine cleaning and disinfection. Follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.

  10. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR 1904, employers are responsible for recording work-related cases of COVID-19 illness on OSHA's Form 300 logs.

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

  12. Follow other applicable mandatory OSHA standards.

Guidance for High-Risk Workplaces

OSHA has also proposed measures appropriate for higher-risk workplaces with mixed vaccination status workers including:

  • Manufacturing

  • Meat and poultry processing

  • Seafood processing

  • High-volume retail and grocery

OSHA also states that employers should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the following types of factors:


  • Close contact – where unvaccinated or otherwise at-risk workers are working close to one another, for example, on production or assembly lines. 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.

  • Duration of contact – where unvaccinated or otherwise at-risk workers often have prolonged closeness to coworkers (e.g., for 8–12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.

  • Type of contact – unvaccinated or otherwise at-risk workers who may be exposed to the infectious virus through respiratory droplets in the air—for example, when unvaccinated or otherwise at-risk workers in a manufacturing or factory setting who have the virus cough or sneeze. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared spaces such as break rooms, locker rooms, and entrances/exits to the facility may contribute to their risk.

  • Other distinctive factors that may increase risk among these unvaccinated or otherwise at-risk workers include:

  • A common practice at some workplaces of sharing employer-provided transportation such as ride-share vans or shuttle vehicles;

  • Frequent contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission; and

  • Communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals.

These OSHA recommendations are in addition to those in the general precautions described above, including isolation of infected or possibly infected workers, and other precautions.

In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:

  • Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least 6 feet of distance from others at all times, including on breaks.

  • Stagger workers' arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near time clocks.

  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.

  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.