New federal guidance issued August 13, 2021 reinforces that all employers should implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19. The District of Columbia and all major surrounding counties in Maryland and Virginia are considered to be areas of substantial or high transmission (as of September 15, 2021). The federal Occupational Safety and Health Act or its state counterpart covers most private sector employers in the United States. While there is no simple one-size-fits-all approach, the OSHA guidance is a helpful checklist for businesses to determine their individual approaches.
- Facilitate employees getting vaccinated. Employers should grant paid time off for employees to get vaccinated and recover from any side effects. Businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan Act. Employers should also consider whether to hold vaccine clinics on-site and whether to implement a vaccination policy under which employees are encouraged or required to become vaccinated with approved vaccines as a condition of employment. We are seeing an uptick in employer interest in developing policies tailored to their unique size, location, industry, and culture. Based on President Biden’s recent announcement, employers with more than 100 workers should expect they will be covered by mandatory vaccination requirements by late fall 2021.
- Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for Covid-19, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19. As recommended by the CDC, fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 should get tested 3-5 days after exposure and should wear a mask in public indoor settings for 14 days or until they receive a negative test result. People who are not fully vaccinated should be tested immediately after being identified, and, if negative, tested again 5–7 days after last exposure or immediately if symptoms develop during quarantine. Ensure that absence policies are non-punitive and eliminate or revise policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19. Again, businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan Act.
- Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers. A key way to protect such workers is to physically distance them from other people (workers or customers) by 6 feet or to block face-to-face pathways by transparent shields or barriers. Employers could also implement flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options.
- 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, CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission and notes that fully vaccinated people may appropriately choose to wear masks in public indoor settings regardless of community level of transmission, particularly if they are at risk or have someone in their household who is at risk or not fully vaccinated. Note that local government or industry requirements for masks or PPE may be more stringent than this federal guidance.
- 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 towards employees, contractors, and any other individuals on site, as appropriate, and should include both basic facts and workplace policies and procedures. Be sure everyone is aware of non-discrimination and non-retaliation policies.
- 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. This could include posting a notice or otherwise suggesting or requiring that people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or who are actively consuming food or beverages on site need not wear face coverings. Note that local government or industry requirements for masks or PPE may be more stringent than this federal guidance.
- Maintain Ventilation Systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated and otherwise at-risk workers in particular. A well-maintained ventilation system is particularly important in any indoor workplace setting, and when working properly, ventilation is an important control measure to limit the spread of COVID-19. Employers should also consider the use of portable air cleaners with High-Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.
- 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 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
- Record and report COVID-19 infections and deaths: Under OSHA rules, an employer may be required to report if a confirmed, work-related case of Covid-19 occurs and certain recording criteria are met. Employers should also report outbreaks to local health departments as required and support their contact tracing efforts.
- Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards. In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities. OSHA encourages employers also consider using a hotline or other method for workers to voice concerns anonymously.
- Follow other applicable mandatory OSHA standards: All of OSHA’s standards that apply to protecting workers from infection remain in place including requirements for PPE respiratory protection, sanitation, protection from bloodborne pathogens, and employee access to medical and exposure records. In addition, many healthcare workplaces will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. Most American employers are also required by the General Duty Clause to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.
It can be bewildering to parse exactly which guidance or mandate applies when the COVID-19 landscape continues to change from week-to-week. I provide guidance to a wide range of businesses and independent schools in Maryland, DC, Virginia and North Carolina. Contact the attorneys at McMillan Metro at (301) 251-1180 for more information.