Chamber Collaborative Of Greater Portsmouth: Winter’s Coming: Updated Pandemic Guidance From Occupational Safety And Health Administration

September 9, 2021

DISCLAIMER: The following content was not created by, but is shared by, the Chamber Collaborative.

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

In contrast to the Emergency Temporary Standards, the updated OSHA pandemic guidelines are not binding on companies. They are guidelines, not regulations. Remember, however, that while the Pandemic Guidelines are not legally binding, employers have a general duty to “each of [their] Employment by employees and a place of work that is free from recognized hazards that cause or can cause death or serious physical harm [their] Employees. “The unchecked spread of the coronavirus in an office environment is certainly considered a” hazard “leading to death as well as serious injury.At a minimum, companies should at least read both the original January 2021 pandemic guidelines and the updated August 2021 pandemic guidelines Consider carefully and then decide what makes sense for the company given the industry, the vaccination rate of the workforce, the opportunities for teleworking, and the level of community penetration.

Highlights from OSHA’s updated pandemic guidelines include the following:

Recommends that fully vaccinated workers exposed to coronavirus should wear masks for a fortnight 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 “significant or high”. Whether an area is “significant or high” will be determined by the CDC and published on the following website, https://covid.cdc.gov/covid-data-tracker/#county-view. At the time of this blog post posting (September 9, 2021), Rockingham County has a “high” decree on community broadcasting. OSHA’s updated mask guidelines are designed to protect both vaccinated and unvaccinated workers alike, especially as breakthrough cases have become more common across the country. Under the guidance of OSHA, the mask recommendation extends to all customers, guests or suppliers of the company.

Encourages employers to adopt policies that require vaccines or incentives (within the boundaries of Title VII and the ADA) or, alternatively, require regular COVID-19 testing for unvaccinated employees. Improving vaccination rates is part of OSHA’s multi-faceted approach to tackling the pandemic. Other controls in the layered approach include masking, social distancing, teleworking, and regular testing.

· Follows CDC guidelines and recommends universal indoor masking for all teachers, staff and students in K-12 schools.

In addition to reviewing and implementing OSHA’s updated pandemic guidelines, companies should monitor the CDC guidelines. OSHA intended to align the updated guidelines with the recommendations of the CDC and will likely adjust the guidelines if the CDC guidelines change.

With vaccines available and a proven approach to combating the spread in the community, this winter is unlikely to be like last winter. Still, the Delta variant has caused and caused a significant increase in infections, hospital admissions, and deaths in the United States. By combining its guidelines and increasing compliance with the “general duty” clause, OSHA has made it clear that employers have a role to play in countering the resurgence of the virus.

If you have any questions about OSHA policies, setting up a vaccine program in the workplace, or workplace policies related to the pandemic in general, it’s important to reach out to an employment law attorney who can help you navigate the regulatory maze to navigate and adopt policies that are right for you.

Brian is a seasoned litigation attorney and advisor to Sheehan Phinney in Portsmouth, New Hampshire, where he serves in the firm’s litigation and labor departments. In the work and employment sector in particular, Brian advises and represents companies on all types of complexities, including lawsuits relating to discrimination, retaliation and violations of wages and hours, leadership issues, executive contracts, employee mobility and regulatory compliance. Brian’s clients range from VC-backed tech companies in Boston to small rum distilleries on the Seacoast and everything in between. Brian has written and lectured on legal subjects across New England and is never unfazed by the complex problems that employers, companies and individuals face on a daily basis.

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Disclaimer of liability

While the above information may contain some general notices, it is not intended as legal advice or a substitute for it.

This press release was produced by the Chamber Collaborative of Greater Portsmouth. The views expressed here are your own.