OSHA Updates COVID Guidance for Non-Healthcare Workplaces

Following the lead from the Centers for Disease Control (CDC), on August 13, 2021 OSHA updated its primary COVID-19 guidance for non-healthcare employer – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.

The guidance embraces CDC’s recent updated mask recommendations for vaccinated individuals from July 27^th. OSHA’s updated guidance includes several links directly to CDC’s July Interim Public Health Recommendations for Fully Vaccinated People, as well as CDC’s COVID-19 Integrated County View Data Tracker, which depicts levels of county-level community transmission (low, moderate, substantial, or high).

OSHA’s updated COVID-19 guidance tracks CDC’s updated guidance closely. For example, OSHA now recommends that:

• Fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers; and
• Fully vaccinated workers everywhere in the country who experience a close contact exposure with a COVID-19 case wear a mask for 14 days or until they receive a negative COVID test taken at least 3 days after the contact.

Recommendations for Protecting Unvaccinated Workers

Additionally, the guidance clarifies OSHA’s recommendations for protecting unvaccinated workers and other at-risk workers in “workplaces with heightened risk due to workplace environmental factors,” including those in manufacturing, meat and poultry processing, seafood processing and agricultural processing.

OSHA’s previous COVID-19 guidance was aimed at non-vaccinated workers and otherwise-at-risk workers, but the updated guidance applies in many circumstances to fully vaccinated workers. Provided below is a summary of the major changes in OSHA’s updated guidance:

• Encouragement of vaccines through vaccine/testing mandates. OSHA “suggests” that employers consider adopting policies that require workers to get vaccinated or, if they remain unvaccinated, to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing. It is unlikely that an employer would be cited under the General Duty Clause for not implementing a vaccine mandate, but this new guidance can bolster efforts by employers to incentivize vaccines.
• Quarantine for fully vaccinated workers. Employers should encourage fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 to get tested three to five days after exposure, and ensure that they wear a mask in public indoor settings for 14 days, or until they receive a negative test result.
• Face coverings. Employers should provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE. In addition to unvaccinated and otherwise at-risk workers, employers should ensure that even fully vaccinated people wear masks in public indoor settings in areas of Substantial or High transmission. Employers should allow fully vaccinated people to wear masks in public indoor settings regardless of the level of community transmission, particularly if they are at risk or have someone in their household who is at risk or not fully vaccinated. Additionally, employers should suggest or require that all customers, visitors or guests wear face coverings in public, indoor settings in areas of Substantial or High transmission.

OSHA Conducting Inspections and Issuing Citations

Even with this new guidance, OSHA’s enforcement of COVID-19 protocols for industries other than healthcare (e.g., mask and quarantine policies) is limited, for the time being, to the General Duty Clause. In 2021 OSHA has already conducted more than 700 inspections under its COVID-19 National Emphasis Program, and it has issued at least five times more General Duty Clause citations than in the entire year of the pandemic before then, including at least two willful GDC violations. General duty citations are essentially judgments of employers’ actions relative to a “reasonable employer” standard, and the citations we have seen include references to CDC’s and OSHA’s COVID-19 guidance.

OSHA Likely to Revisit Decision to Exclude Non-Health Care Workers

OSHA’s updated guidance has raised concern that OSHA will revisit its decisions to exclude non-healthcare workplaces from its COVID-19 emergency temporary standard (ETS).  One of the major reasons that OSHA issued the narrow healthcare-focused rule was the CDC’s guidance in May that emphasized how safe vaccinated individuals are, and relaxed COVID protocols for vaccinated workers. With the updated COVID-19 workplace protocols for vaccinated workers, OSHA could decide to issue an ETS for all workplaces.

NASF participates in an industry coalition focused on the COVID-19 ETS and workplace protocols, and will continue to monitor developments that may impact the surface finishing industry.  If you have any questions or would like additional information on this issue, please contact Christian Richter or Jeff Hannapel with NASF at crichter@thepolicygroup.com or jhannapel@thepolicygroup.com.

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.