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OSHA Updates General Workplace COVID-19 Guidance, Issues Emergency Temporary Standard for Health Care Settings

June 14, 2021

On June 10, 2021, the federal Occupational Safety and Health Administration (OSHA) updated its guidance entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to reflect the change in CDC's guidance regarding fully vaccinated people.

The guidance expressly states that it creates no new legal obligations, but only recommendations that are advisory in nature, as well as descriptions of previously existing mandatory OSHA standards. It also states that it applies to many workplaces, but several health care workplace settings will be covered by a separate mandatory OSHA COVID-19 Emergency Temporary Standard.  

With the updated guidance, OSHA states that "most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure" unless otherwise required by federal, state, and local laws and directives. Thus, OSHA's updated guidance focuses only on protecting unvaccinated or otherwise at-risk workers. "At-risk workers" include those with conditions such as prior transplants and prolonged use of medications that affect their ability to have a full immune response to vaccination. OSHA advises employers to take steps to protect these at-risk workers as they would unvaccinated workers, regardless of their vaccination status. 

The steps for employers to protect unvaccinated or otherwise at-risk workers in the workplace may include:

The OSHA guidance also sets forth additional measures that can be taken at high-risk workplaces with mixed vaccination status workers. High-risk workplaces might exist where there is frequent or prolonged close contact between unvaccinated or at-risk workers, especially in shared spaces such as break rooms, locker rooms and entrance/exit areas. Examples of these higher-risk workplaces include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing. In such workplaces, employers should consider additional measures, including:

Also on June 10, 2021, OSHA issued the Emergency Temporary Standard for Healthcare (the ETS), which set out the requirements for health care settings to protect workers in these workplaces from contracting COVID-19. Consistent with CDC guidelines, the ETS exempts fully vaccinated workers from face coverings, physical distancing and barrier requirements when in well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed COVID-19. The ETS is effective immediately once published in the Federal Register, and covered employers must comply with most provisions within 14 days. In the event that an employer, despite its best efforts, is unable to comply with all requirements of the ETS by compliance dates, OSHA states that it is willing to use its enforcement discretion if the employer can show it has made good efforts to comply but has been unable to do so.

If you have any questions about the updated OSHA COVID-19 guidance, ETS, or how the changes impact your workplace, please contact the authors of this alert or your Miller Canfield attorney.

This information is based on the facts and guidance available at the time of publication and may change.