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Critical guidance on OSHA’s COVID-19 Emergency Temporary Standard

By Bill Wallace, VPC Safety Branch Director

OSHA issued updated guidance to the Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace on August 13, 2021. 

The guidance helps employers protect workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at-risk, including if they are immunocompromised.

The guidance also assists employers implement strategies to protect workers who are fully vaccinated but located in areas of substantial or high community transmission.”

OSHA’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. 

OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19. OSHA 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. 

At-risk workers may include, transplant recipients, employees using immune-weakening medications, or co-morbidities may affect workers’ ability to have a full immune response to vaccination. Under the Americans with Disabilities Act (ADA), workers with disabilities may be legally entitled to reasonable accommodations that protect them from the risk of contracting COVID-19 if, for example, they cannot be protected through vaccination, cannot be vaccinated, or cannot use face coverings. 

Healthcare workplaces should review and comply with the mandatory OSHA COVID-19 Emergency Temporary Standard. Healthcare employers must comply with that standard. All 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. 

This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory OSHA standards. 

Workers are encouraged to receive a vaccination

You should follow recommended precautions and policies at your workplace 

These COVID-19 prevention programs include measures such as telework and flexible schedules, engineering controls (especially ventilation), administrative policies (e.g., vaccination policies), PPE, face coverings, physical distancing, and enhanced cleaning programs with a focus on high-touch surfaces.

If your employer does not have a COVID-19 prevention program, if you are unvaccinated or otherwise at risk, you can help protect yourself by following the steps listed below:

  • Get a COVID-19 vaccine as soon as you can. 
  • Properly wear a face covering over your nose and mouth. 
  • Unless you are fully vaccinated and not otherwise at-risk, practice social distancing. Stay at least 6 feet (about 2 arm lengths) from others. 
  • Participate in any training offered by your employer/building manager to learn how rooms are ventilated effectively, encourage your employer to provide such training. 
  • Practice good personal hygiene and wash your hands often. 
  • Always cover your mouth and nose with a tissue, or the inside of your elbow, when you cough or sneeze, and do not spit. 
  • Monitor your health daily and be alert for COVID-19 symptoms (e.g., fever, cough, or shortness of breath). See CDC’s Daily Activities and Going Out and CDC’s Interim Public Health Recommendations for Fully Vaccinated People.
  • Get tested regularly, especially in areas of substantial or high community transmission.

Employers and employees should work together to implement strategies to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19, including:

  1. Facilitate employees getting 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
  3. Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.  
  4. Provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE. When an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers from exposure to COVID-19, the employer must provide PPE in accordance with relevant mandatory OSHA standards and should consider providing PPE in accordance with other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 CFR 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR part 1910, Subpart I (e.g., 1910.132 and 133). 
  5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in languages they understand. 

Train managers on how to implement COVID-19 policies. 

Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace. 

Communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. 

Training should be directed at employees, contractors, and any other individuals on site, as appropriate, and should include:

  1. Basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene.
  2. Workplace policies and procedures implemented to protect workers from COVID-19 hazards.
  3. Suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission
  4. Maintain Ventilation Systems.  
  5. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards 29 CFR 1910.1200 and 1910.132133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
  6. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR part 1904, employers are required to record work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 CFR part 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. More information is available on OSHA’s website. Employers should also report outbreaks to local health departments as required and support their contact tracing efforts.
  7. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. 
  8. Follow other applicable mandatory OSHA standards: All of OSHA’s standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR part 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA’s requirements for employee access to medical and exposure records (29 CFR 1910.1020). Many healthcare workplaces will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. More information on that standard is available on OSHA’s website. Employers are also required by the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

Employers should take additional steps to mitigate the spread of COVID-19 among unvaccinated or otherwise at-risk workers due to the following types of workplace environmental factors, especially in locations of substantial or high transmission:

  • Close contact– where unvaccinated and otherwise at-risk workers are working close to one another, for example, on production or assembly lines or in busy retail settings. 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 and otherwise at-risk workers often have prolonged closeness to coworkers (e.g., for 6–12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.
  • Type of contact – where unvaccinated and otherwise at-risk workers may be exposed to the infectious virus through respiratory particles in the air—for example, when infected workers in a manufacturing or factory setting cough or sneeze, especially in poorly ventilated spaces. Confined spaces without adequate ventilation increase the risk of viral exposure and transmission. It is also possible, although less likely, that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared closed spaces such as break rooms, locker rooms, and interior hallways in the facility may contribute to risk.
  • Other distinctive factors that may increase risk among 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 individuals in community settings, especially in areas where there is substantial or high community transmission; and
    • Communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals.

I strongly recommend reading the entire Emergency Temporary Standard found on the homepage at www.osha.gov.

If you have questions or concerns or comments, email me, Bill Wallace or contact us online.

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