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  • Mask Up! OSHA’s Updated Guidance Follows CDC’s Direction for All Employees

    The Occupational Safety and Health Administration (OSHA) has published updated guidance aimed at further mitigating and preventing COVID-19’s spread in the workplace. The agency’s guidelines track the U.S. Centers for Disease Control and Prevention’s (CDC) July 27, 2021, mask and testing recommendations for all employees, including those already fully vaccinated.

    Covered Workplaces

    OSHA’s updated COVID-19 guidance applies to all workplaces not covered by the agency’s emergency temporary standard (ETS) for healthcare services. Although it creates no new legal obligations for employers, it does indicate what the agency will expect from them.

    An employer that fails to comply with OSHA’s updated guidance may be accused of violating the Occupational Safety and Health Act’s (OSH Act) general duty clause for not keeping the workplace free from recognized, serious health and safety hazards. Many of you have already implemented COVID-19 safety programs and policies as you gear up for office reopenings. Therefore, you should:

    • Compare your programs and policies against OSHA’s updated guidance as well as other applicable federal, state, and local guidelines and mandates; and
    • Assess whether any updates need to be made to your programs and policies.

    Key Changes

    OSHA’s updated guidance recommends all employees wear a mask in any indoor or outdoor shared settings in areas with substantial or high levels of community transmission (incorporating the CDC’s COVID-19 data tracker found here):

    • Vaccinated employees should (1) get tested three to five days after a known exposure to someone suspected or confirmed to have the virus and (2) wear a mask in public indoor settings for 14 days or until they receive a negative test result.
    • Unvaccinated employees should be tested immediately after exposure. If they initially test negative, they should get another test five to seven days after the last exposure or immediately if symptoms develop during quarantine.

    OSHA further suggests employers consider adopting programs and policies requiring employees to either get vaccinated or submit to regular COVID-19 testing.

    Guidance for Nonhealthcare Employers

    OSHA’s updated COVID-19 guidance includes recommended steps you should take to protect employees and prevent the infection from spreading:

    • Grant employees paid time off (PTO) to get vaccinated and recover from any side effects;
    • Instruct all employees to stay home if they test positive or present COVID-19 symptoms, and tell unvaccinated employees to remain at home if they’ve had close contact with someone who tested positive;
    • Implement physical distancing for unvaccinated and at-risk employees in communal work areas;
    • Provide all employees with face coverings or surgical masks unless their job duties require the use of a respirator or other personal protective equipment (PPE);
    • Conduct training on your COVID-19 policies and procedures in accessible formats and languages understood by employees;
    • Suggest or require unvaccinated visitors to wear face coverings and that all visitors wear face coverings in public, indoor settings in areas of substantial or high transmission;
    • Maintain ventilation systems, including installing MERV-13 or better air filters, and use HEPA filters in high-occupancy or limited ventilation spaces;
    • Perform routine cleaning and disinfection (including by following CDC cleaning and disinfection recommendations within 24 hours of any suspected or confirmed COVID-19 case;
    • Record and report work-related COVID-19 infections and deaths;
    • Prohibit retaliation against employees voicing concerns about coronavirus-related hazards, and set up an anonymous process for them to make their worries known; and
    • Continue to follow all other applicable OSHA standards.

    OSHA’s Guidance Versus State Plans

    California, Washington, Oregon, Alaska, and more than a dozen other states and territories fall within the jurisdiction of their own state-specific workplace safety and health plans. The state-plan states don’t need to adopt the federal OSHA COVID-19 guidance if their plan is equally or more protective of employees.

    Nevertheless, state-plan states may rely on OSHA’s updated guidance as a basis to support an alleged violation of their equivalent of the federal agency’s general duty clause or specific safety and health standards. In addition, some states have adopted emergency temporary or permanent coronavirus standards.

    Unlike OSHA’s guidance, the state standards are enforceable on their own terms. Employers in jurisdictions with state regulations should familiarize themselves with the legal obligations they impose.

    Bottom Line

    Continue to follow federal, state, and local COVID-19 rules and regulations. In addition, evaluate on an individualized basis whether implementing further safeguards based on OSHA’s updated guidance is appropriate.

    Chad Darcy, Kristal Leonard, and Joseph P. Hoag are attorneys with Davis Wright Tremaine LLP in Anchorage, Alaska. Chad has extensive work experience before law school as a United States Marine Corps veteran giving him firsthand experience managing complex matters with scarce resources to achieve high-performing outcomes in dynamic environments. Kristal defends employers against workplace disputes in agency and state court proceedings, including petitions for review to the Alaska Supreme Court. Joseph represents clients in myriad employment claims, including discrimination, retaliation, failure to accommodate, and wrongful termination.