What New York Employers Need to Know About OSHA’s Updated COVID-19 Guidelines

The delta variant and resulting spike in COVID-19 cases is forcing many New York businesses to alter their COVID-19 protocols…

The delta variant and resulting spike in COVID-19 cases is forcing many New York businesses to alter their COVID-19 protocols. The Centers for Disease Control and Prevention (CDC) has also changed its mask guidance, now recommending that even fully-vaccinated people mask in “public indoor settings” in areas of high and substantial COVID-19 transmission. For employers, the rapidly evolving situation is understandably leading to uncertainty regarding health and safety protocols for the workplace.

On August 13, 2021, the U.S. Occupational Safety and Health Administration (OSHA) published its updated COVID-19 guidance to account for the CDC guidance change regarding masks. According to OSHA, the updates are intended to help employers protect workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at-risk, including if they are immunocompromised. The new guidance also implements new guidance involving workers who are fully vaccinated but located in areas of substantial or high community transmission.

Updated OSHA COVID-19 Guidance

To start, OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19. Accordingly, the guidance strongly encourages employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects. In addition, OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated. The updated guidance also reflects growing evidence that some fully vaccinated individuals may still be capable of transmitting the virus to others.

In addition to vaccination, OSHA recommends that employers adopt “key controls” to help protect unvaccinated and other at-risk workers. These include removing from the workplace all infected people, all people experiencing COVID symptoms, and any people who are not fully vaccinated who have had close contact with someone with COVID-19 and have not tested negative for COVID-19 immediately if symptoms develop and again at least 5 days after the contact (in which case they may return 7 days after contact). The guidance further provides that fully vaccinated people who have had close contact should get tested for COVID-19 3-5 days after exposure and be required to wear face coverings for 14 days after their contact unless they test negative for COVID-19.

According to OSHA, additional fundamental controls that protect unvaccinated and other at-risk workers include maintaining ventilation systems, implementing physical distancing, wearing face coverings, and performing proper cleaning. The updated guidance expressly states that fully vaccinated people in areas of substantial or high transmission should be required to wear face coverings inside (or other appropriate PPE and respiratory protection) as well.

OSHA Recommendations for Higher-Risk Workplaces

The updated OSHA guidance also includes specific recommendations for higher-risk workplaces, including where unvaccinated and otherwise at-risk workers are working close to one another; where unvaccinated and otherwise at-risk workers often have prolonged closeness to coworkers; where unvaccinated and otherwise at-risk workers may be exposed to the infectious virus through respiratory particles in the air; and where workers have frequent contact with other individuals in community settings. The guidance specifically lists the following examples of higher-risk workplaces: manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings.

In all workplaces with heightened risk due to workplace environmental factors where there are unvaccinated or otherwise at-risk workers in the workplace, OSHA recommends the following:

• 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. OSHA recommends that such workers 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 workers in parking areas, locker rooms, and near time clocks.
• Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
• Require unvaccinated or otherwise at-risk workers, and also fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible, encourage and consider requiring customers and other visitors to do the same.
• Implement strategies (tailored to your workplace) to improve ventilation.

In high-volume retail workplaces (or well-defined work areas within retail workplaces) where there are unvaccinated or otherwise at-risk workers, customers, or other people, OSHA advises employers to:

• Ask customers and other visitors to wear masks—or consider requiring them—especially in areas of substantial or high transmission.
• Consider ways to promote physical distancing between unvaccinated or otherwise at-risk people and/or limiting occupancy to allow for physical distancing consistent with CDC guidance.
• Move the electronic payment terminal/credit card reader farther away from unvaccinated and otherwise at-risk workers in order to increase the distance between customers and such workers, if possible.
• Adjust stocking activities to limit contact between unvaccinated and otherwise at-risk workers and customers.

Citing that unvaccinated or otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans, OSHA recommends that employers:

• Notify unvaccinated and otherwise at-risk workers of this risk and, to the extent feasible, help them limit the number of such workers in one vehicle.
• Make sure all unvaccinated and otherwise at-risk workers sharing a vehicle are wearing appropriate face coverings. Make sure all workers wear appropriate face coverings in areas of substantial or high community transmission.
• Where not prohibited by weather conditions, open vehicle windows.

In meat, poultry, and seafood processing settings; manufacturing facilities; and assembly line operations (including in agriculture) involving unvaccinated and otherwise at-risk workers, OSHA urges employers to:

• Ensure adequate ventilation in the facility, or if feasible, move work outdoors.
• Space such workers out, ideally at least 6 feet apart, and ensure that such workers are not working directly across from one another. OSHA also cautions that barriers are not a replacement for worker use of face coverings and 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. According to OSHA, barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used.
• Barriers do not replace the need for physical distancing – at least six feet of separation should be maintained between unvaccinated and otherwise at-risk individuals whenever possible.

Enforceability of OSHA Guidance

It is important to note that the OSHA guidance is not a standard or regulation, and it creates no new legal obligations for New York employers. Rather, its sets forth the agency’s recommendations as well as descriptions of existing mandatory OSHA standards.

Many healthcare workplace settings, however, are subject to the mandatory OSHA COVID-19 Emergency Temporary Standard. Pursuant to the Occupational Safety and Health Act (Act), employers in those settings must comply with that standard, which mandates that employers establish a virus safety plan that includes specific components if more than 10 workers are employed (among other requirements).

While the guidance does not carry the force of law, employers must comply with any other applicable mandatory safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. 

Key Takeaway for New York Employers

As employers continue to navigate their way through the COVID-19 pandemic, the most important point to remember is to have health and safety protocols in place and clearly communicate them to your workers. Because these plans may need to be revised as we learn more about the virus and regulators provide additional guidance, it is also essential to stay informed. Please continue to check back here for additional legal updates and contact our attorneys with any questions.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Thomas Herndon, Jr., or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.