COVID-19 has taken a great toll on employees and workplaces. Of primary concern for employers is the safety and health of employees. Up until June 2021, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) had not provided formal guidance on dealing with COVID-19 in the workplace.

In June 2021, OSHA published Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, for all employers outside of the health care industry. Since then, OSHA’s guidance has been updated to include the most current information and recommendations from the U.S. Centers for Disease Control and Prevention (CDC).

OSHA also implemented 29 C.F.R. § 1910 Subpart U, which is the emergency temporary standard for COVID-19 in health care. The information discussed here does not include the requirements of the OSHA standard 1910 Subpart U.

Guidance Considerations

OSHA provided the mitigation and prevention guidance for employers as recommendations on how to use a layered approach to minimizing the spread of COVID-19 and to protect vaccinated, unvaccinated, and otherwise at-risk workers. Also included are the mandatory OSHA standards that employers must follow.

Although OSHA’s guidance is advisory in nature, employers should consider the potential repercussions of not implementing the recommendations. The guidance specifically states that “the recommendations … are intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.”

Potential repercussions arise under the General Duty Clause of the OSH Act, which places responsibility on employers to provide their employees with a workplace that is free from recognized hazards that cause or are likely to cause death or serious physical harm.

This means that OSHA Compliance Safety and Health Officers performing workplace inspections can cite employers for not providing a workplace free from recognized hazards. These hazards can include those discussed in the guidance, regardless of whether they are mandatory or not.¹

Six Recommendations

The State of Wisconsin follows the Federal OSHA standards. It is important that employers review OSHA’s guidance and update their COVID-19 prevention plans to provide a safe and healthy workplace for their employees.

This OSHA guidance provides several precautions and policies employers may choose to implement in the workplace.

Below is an overview of only six of the recommendations, which includes some of the applicable mandatory OSHA standards.

Vaccinations

Employers should provide employees with paid time off and time for recovery after they receive the vaccination. OSHA also recommends that employers try to provide access to vaccinations at the workplace. Employers are encouraged to work with local public health facilities to provide that option to their employees.

OSHA recommends implementing vaccination policies within the workplace to require that workers are vaccinated or have COVID-19 testing regularly if they wish to remain unvaccinated.

These strategies are in addition to continuing to wear face coverings and physical distancing.

If employers decide to mandate a vaccination policy, they must review the federal and state laws that pertain to that type of policy. Employers and their legal counsel should identify the legal and practical considerations of implementing such a policy.

Removal from the Workplace

If employees come into close contact with someone that has tested positive for COVID-19 or who have tested positive for COVID-19 themselves, employers should ensure they stay home from work to prevent transmission to other workers.

The CDC recommends that fully-vaccinated employees who have had exposure to someone with a suspected or confirmed case of COVID-19 should be tested within 3-5 days of the exposure.² These individuals should wear a mask in public indoor settings for 14 days or until they obtain a negative test result. Employees should isolate if they have tested positive for COVID-19 in the prior 10 days or are experiencing symptoms.

Those who are not fully vaccinated should be tested immediately. If they test negative, they should be retested again within 5-7 days after the exposure. If the employee develops symptoms, they should be tested immediately. OSHA recommends that absence policies be made nonpunitive to prevent employees coming to work sick.

Face Coverings and Personal Protective Equipment

Employers should provide face coverings to employees when they request employees help prevent the transmission of COVID-19. Face coverings should be worn by vaccinated employees in addition to unvaccinated or otherwise at-risk employees. Vaccinated employees are now being encouraged to wear face coverings in public indoor settings in areas of substantial or high transmission areas.

For workplaces that are open to outside individuals, such as retail establishments or facilities that allow the public inside, OSHA recommends employers suggest or require unvaccinated customers, visitors, or guests to wear face coverings when entering the business. In places of substantial or high transmission, everyone should wear face coverings. Employers can accomplish this by posting the requirement throughout establishment.

Mandatory requirements apply when employers decide that personal protective equipment (PPE) is required for employee job tasks. If employers decide PPE is necessary for unvaccinated or otherwise at-risk employees, they must follow OSHA’s applicable standards to determine what PPE is necessary for the identified hazard(s). These standards can include the PPE standard, the general duty clause, and other applicable industry specific guidance.

If employers determine that respirators are necessary, they must comply with the respiratory protection standard.³ This standard includes requirements for a written respiratory protection program, fit testing, medical determination, and required training.

Even if the employer determines PPE use is not required for a particular hazard, some employees may have the right to use PPE as a reasonable accommodation under the Americans with Disabilities Act. Employers should inform their employees of these rights.

Educate and Train Employees

Under this OSHA guidance, employers should train their managers on how to implement COVID-19 policies. Supportive workplace policies should be clearly communicated via multiple methods, using language employees will understand, to promote a safe and healthy workplace. As applicable, employers should also consider methods to make education and training accessible to individuals with disabilities.

Education and training should be directed to employees, contractors, and any other individuals on site, and should include:

• basic facts about COVID-19, including how it is spread and transmitted;

• the importance of physical distancing, including remote work;

• ventilation;

• vaccination;

• use of face coverings;

• hand hygiene; and

• workplace policies and procedures implemented to protect employees from COVID-19 hazards.

Reporting and Recording COVID-19 Cases

Under mandatory OSHA standards in 29 CFR 1904, employers are responsible for recording work-related cases of COVID-19 illness on OSHA's Form 300 logs if the following requirements are met:

• the case is a confirmed case of COVID-19;

• the case is work-related (as defined by 29 CFR 1904.5); and

• the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7, such as medical treatment and days away from work).⁴

Employers must follow the OSHA standard Recordkeeping Forms and Recording Criteria when reporting COVID-19 fatalities and hospitalizations to OSHA. Employers should also report outbreaks to their health department as required and support their contact tracing efforts.

OSHA does not want to give any suggestion of discouraging employees from receiving COVID-19 vaccinations or disincentivizing employers' vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904's recording requirements requiring employers to record worker side effects from COVID-19 vaccination through May 2022.⁵ OSHA will reevaluate the agency's position at that time to determine the best course of action moving forward. Individuals may choose to submit adverse reactions to the Federal Vaccine Adverse Event Reporting System.

Higher Risk Workplaces with Mixed Vaccination Status Workers

Employers should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk employees in workplaces.

In high-risk workplaces, like manufacturing, meat and poultry processing, high-volume retail, and grocery and seafood-processing establishments, employers should use best practices to protect unvaccinated or otherwise high-risk employees.

These recommendations are in addition to the general precautions in the OSHA guidance, and can be found in the guidance’s appendix.

Conclusion: Keep Workplaces Safe and Free from Hazards​

OSHA provides the recommendations mentioned in this blog and others in their publication as advisory in nature, unless it has been otherwise noted as mandatory. However, this guidance will change due to Pres. Biden’s mandate for OSHA​ to issue a private employer emergency temporary standard for employers with 100 or more employees. Once OSHA issues the emergency temporary standard, the guidance will likely no longer be relevant. Until the new emergency temporary standard is issued, employers should still use the guidance as necessary.

The fact of the matter is that, if an OSHA inspection occurs and employees are found to not have a safe and healthy workplace free from hazards that are likely to cause death or serious physical harm, employers can, and likely will be, cited under the general duty clause.

It is important for employers to understand and correctly implement requirements under the OSHA standards while being aware of the guidance they provide for mitigating and preventing COVID-19 transmission.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ See OSH Act of 1970, 29 U.S.C. § 654 (1970).

² See U.S. Centers for Disease Control and Prevention, Interim Public Health Recommendations for Fully Vaccinated People (2021).

³ 29 C.F.R. § 1910.134 (2011).

⁴ U.S. Department of Labor, Mitigating and Preventing the Spread of COVID-19 in the Workplace (2021).

⁵ U.S. Departmen​t of Labor, Non-ETS Frequency Asked Questions (2021).