In the words of Yogi Berra, it feels like déjà vu all over again. With COVID-19 infections rising again throughout the country, particularly due to the rapid spread of the Delta variant strain, the US Centers for Disease Control and Prevention (CDC) issued new guidance on July 27, 2021 (i) recommending that all persons living and working in areas with substantial or high community COVID-19 infection rates wear masks in indoor settings, regardless of vaccination status, and (ii) encouraging mask use in public by fully vaccinated people who are immunocompromised, at increased risk of severe disease from COVID-19, or live with someone who is immunocompromised or not fully vaccinated. These recommendations mark a reversal of May 2021 CDC guidance that fully vaccinated people could, by and large, forgo masking in public. In addition, the CDC recommends that workers who are not fully vaccinated be required to wear masks at all times, maintain physical distancing, and undergo regular COVID-19 testing.

On August 13, 2021, the US Occupational Safety and Health Administration (OSHA) followed suit, updating its COVID-19 workplace safety recommendations to align with the newly-released CDC guidance. OSHA now encourages employers to help workers get vaccinated, continue to instruct those who test positive to stay home from work, enforce physical distancing, and provide masks to workers. Although infection rates among fully vaccinated persons remains low, and serious illness or death among fully vaccinated persons is very rare, OSHA co-signed the CDC’s recommendation that even fully vaccinated workers should wear masks in indoor settings to slow the spread of the virus to others who may not be fully vaccinated and to those who are at risk of more serious complications from infection. OSHA thus recommends:

  • Vaccination. According to the new OSHA guidance, “Vaccination is the key element in a multi-layered approach to protect workers.” OSHA urges employers to promote a healthy and safe workplace (an employer obligation under the General Duty clause of the Occupational Safety and Health Act) by providing time off for vaccination, including paid time off if company policy or state leave laws apply.
  • Testing. “OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask-wearing and physical distancing – if they remain unvaccinated.” Although regular COVID-19 testing is not mandatory under the guidance, employers who have elected not to require COVID-19 vaccination should consider requiring employees who have not been vaccinated, or who refuse to provide proof of vaccination, to test weekly and provide their employers with negative test results before entering the workplace.
  • Mask-wearing. Consistent with CDC guidance, OSHA recommends that even fully vaccinated persons wear a mask in public indoor settings in areas of substantial or high transmission, regardless of vaccination status.
  • Other ameliorative measures. Vaccination is critical, but OSHA reminds employers of the importance of considering telework and flexible schedules, engineering controls such as ventilation, PPE, face coverings, physical distancing, and enhanced cleaning and sanitation. Employees who have had close contact with someone testing positive for the coronavirus and workers with COVID-19 symptoms should be required to stay home from work until symptoms abate and they test negative 3-5 days after exposure.

The updated OSHA guidance includes a reminder to employers to record work-related cases of COVID-19 illness on Form 300 logs if (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria, such as illness requiring medical treatment or days away from work. Employers have additional reporting obligations related to COVID-19 fatalities and hospitalizations.

Finally, the updated OSHA guidance contains specific advice for certain higher-risk workplaces, such as those where employees work in close contact for longer periods of time (e.g., busy retail settings, production/assembly lines, high contact with individuals in community settings, communal housing or living quarters, and workplaces where employees use ride-share vans or shuttles). Tips for these settings include staggered break times; providing temporary break areas and restrooms to reduce density; staggering arrival and departure times; providing visual cutes as physical distancing reminders; requiring mask use; improving ventilation; requiring customer/client mask use; moving point-of-service terminals away from customers; adding impermeable, cleanable, fixed barriers/splashguards; adjusting re-stocking schedules to minimize community contact; reducing headcount in employer-provided transportation; and spacing work stations.

Both the CDC and OSHA guidance are reminders that the pandemic is far from over, and employers must remain vigilant in order to prevent outbreaks, protect workers, and help curtail community spread. Employers considering implementing vaccination policies or other COVID-19 mitigation strategies should contact their Squire Patton Boggs labor and employment counsel for further assistance.