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Part Two: OSHA issues updated COVID-19 guidance for non-healthcare employers

When OSHA issued the ETS, it also updated its workplace COVID-19 guidance. The updates focus on three areas; protections for unvaccinated workers and otherwise at-risk workers, encouraging vaccination, and linking to guidance with up-to-date information. It follows the CDC guidance issued on May 13 that relaxed requirements for vaccinated individuals. Unless other rules, laws, or regulations are more restrictive, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

However, for unvaccinated or at-risk workers, employers must continue to implement controls to protect them, including physical distancing, ventilation, and instructing infected workers, unvaccinated workers who have been in close contact with someone who tested positive, and all workers exhibiting symptoms to stay home. It also recommends granting paid time off for employees to get vaccinated (businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan Act), performing routine cleaning and disinfection, providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE, properly training workers in a language they understand, implanting physical distancing in all communal areas, suggesting that unvaccinated customers, guests, and visitors wear face coverings, and following other applicable OSHA standards. It also encourages employers to set up an anonymous process for workers to voice concerns about COVID-19-related hazards and ensure that protections against retaliation are implemented.

The appendix addresses "higher risk" workplaces, which have close contact on production or assembly lines and in break rooms and changing rooms/locker rooms, as well as in employer-provided housing and transportation, especially where unvaccinated or otherwise at-risk workers have prolonged closeness with coworkers over an 8- to 12-hour shift. Staggered arrival and departure times, staggered break times or temporary break areas and restrooms, improved ventilation, barriers when physical distancing is not possible, and providing visual cues, such as signs and floor markings, to remind workers of physical distancing are recommended. It also has specific recommendations for the retail industry.

Some important changes from earlier guidance include permitting employers to treat vaccinated and non-vaccinated workers differently and eliminating some recommendations for inclusion in prevention programs, such as designating a workplace coordinator, identifying where and how workers might be exposed to COVID-19 at work, and providing guidance on testing and screening. There seems to be a basic assumption that employers will know who is vaccinated and who isn't, although the guidance doesn't address how to do it. It is addressed in the ETS and OSHA presents several possibilities on p. 32565 of the Federal Register/ Vol. 86, No. 116 / Monday, June 21, 2021. This can serve as a guide for employers.

Employers must record work-related COVID-19 infections and deaths in their Form 300 injury and illness recordkeeping logs; however, the agency does not require employers to record workers' adverse effects from a vaccination through May 22, 2022.

While OSHA states that its updated guidance is not a standard or regulation, and creates no new legal obligations, it references its enforcement authority under the OSH Act's General Duty Clause. This warning, coupled with its active COVID-19 National Emphasis Program, alerts employers to update their programs and policies and train workers on the new guidance.