Winter’s Coming: Updated OSHA Pandemic Guidelines – Employment & HR


United States: Winter is Coming: Updated OSHA Pandemic Guidelines

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The Occupational Safety and Health Administration (“OSHA”) has had a busy summer. In June, OSHA released temporary emergency standards to regulate the healthcare industry’s approach to COVID-19. These were the first temporary emergency standards that OSHA has issued since 1983 and only the second temporary emergency standards that OSHA has issued in its forty-year history. On August 16, OSHA also released updated workplace guidelines for COVID-19 and the largely uncontrolled spread of the Delta variant. New Hampshire employers would do well to heed these guidelines.

Unlike temporary emergency standards, updated OSHA pandemic guidelines are not binding on businesses. These are guidelines, not regulations. But keep in mind that while the pandemic guidelines do not have the force of law, employers have a general obligation to “provide everyone with [their] the employment of employees and a workplace that is free from recognized hazards which cause or are likely to cause death or serious physical damage to [their] employees. ”The uncontrolled spread of the coronavirus in an office certainly qualifies as a“ danger ”both causing an announcement that could cause death and serious injury. So far, the Biden administration has tripled the use of general obligation clause in its investigative and enforcement practices. At a minimum, companies should carefully review both the original January 2021 pandemic guidelines and the updated August 2021 pandemic guidelines, and then decide to which makes sense for the company given its field of activity, the vaccination rate of the workforce, the possibilities of teleworking and the level of community spread.

Highlights of the updated OSHA pandemic guidelines are as follows:

  • Recommends that fully vaccinated workers who have been exposed to the coronavirus wear masks for fourteen days, unless they have a negative coronavirus test at least 3-5 days after known contact.
  • Recommends that all workers, including those fully vaccinated, wear face masks in indoor public places where virus transmission is “substantial or high.” Whether an area is a “substantial or high” transmission area is determined by the CDC and posted on the following website, https://covid.cdc.gov/covid-data-tracker/#county-view. As of the publication of this blog post (September 9, 2021), Rockingham County has a “high” Community Transmission Order. OSHA’s updated mask guidelines aim to protect both vaccinated and unvaccinated workers, especially as breakthrough cases have become more common across the country. Under OSHA’s direction, the mask recommendation also extends to all of the company’s customers, guests, or vendors.
  • Encourages employers to adopt policies requiring or encouraging vaccines (within Title VII and ADA limits) or to require, failing that, regular COVID-19 testing for unvaccinated employees. Improving vaccination rates is part of OSHA’s tiered approach to controlling the pandemic. Other controls of the tiered approach include masking, social distancing, telecommuting, and regular testing.
  • Adopts CDC guidelines and recommends universal interior masking for all teachers, staff, and students in Kindergarten to Grade 12.

In addition to reviewing and implementing, where appropriate, updated OSHA pandemic guidelines, companies should monitor the CDC guidelines. OSHA wanted the updated guidelines to align with the CDC recommendations and will likely adjust the guidelines as CDC policy changes.

With vaccines available and a proven approach to controlling community spread established, this winter is unlikely to be like last winter. Yet the Delta variant has caused and is causing a significant increase in infections, hospitalizations, and deaths in the United States. OSHA, through the combination of its guidance and increased attention to the “general duty” clause, has made it clear that employers must play a role in combating the resurgence of the virus.

Originally posted by The Chamber Collaborative of Greater Portsmouth

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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