June 17, 2021

OSHA's Updated Guidance on Protecting Unvaccinated and At-Risk Workers


Last week, the Occupational Safety and Health Administration (OSHA) updated its guidance on mitigating the spread of COVID-19 in the workplace.

Last week, the Occupational Safety and Health Administration (OSHA) updated its guidance on mitigating the spread of COVID-19 in the workplace. Recognizing the revised CDC standards on masks and social distancing for fully vaccinated people, the updated guidance is intended to help employers identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk, and to help them take appropriate steps to prevent exposure and infection. Here's what you need to know.

Employers should continue to take steps to protect unvaccinated or otherwise at-risk workers.

Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19.

Keeping the Workplace Safe

OSHA’s updated guidance reinforces that employers should ensure a safe return-to-work and minimize COVID-19 transmission. In the case of a partially vaccinated workplace, it recommends “multi-layered interventions,” including: 

  • Give paid time off for employees to get vaccinated.  
  • 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. 
  • Implement physical distancing for unvaccinated and otherwise at-risk workers in communal areas. 
  • Provide masks to unvaccinated and otherwise at-risk workers at no cost.
  • Educate and train workers on your COVID-19 policies and procedures.
  • Advise that unvaccinated customers or guests wear masks, especially in public-facing workplaces such as retail establishments. 
  • Improve and sustain ventilation systems.
  • Regularly clean and disinfect the workplace.
  • Record and report COVID-19 infections and deaths. 
  • Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  • Protect against discrimination for following occupational safety and health activities.

These recommendations are advisory in nature and informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace. This guidance is not a standard or regulation, and it creates no new legal obligations.

Precautions for Higher-Risk Workplaces

The agency provides further recommendations for higher-risk workplaces, such as manufacturing, high volume retail and grocery, and food processing. In addition to the steps outlined above, higher-risk workplaces should: 

  • Stagger break time, as well as workers’ arrival and departure times, or provide temporary break areas and restrooms to prevent gatherings of unvaccinated and at-risk workers 
  • Remind workers to maintain social distancing with visual cues (i.e. floor markers) 

Breaking News

Earlier today, the U.S. Supreme Court rejected a challenge to the Affordable Care Act's (ACA’s) individual mandate, holding that Texas and other states did not have a legal right to sue. The ruling leaves the ACA intact. 

As a result, employers should note that the health care law remains fully in effect, including all coverage obligations and reporting requirements.