Patricia M. Prezioso, Grace A. Byrd
Employment and Labor
August 16, 2021
In response to the recent surge of
the COVID-19 Delta variant, government agencies and officials have reinstituted
masking recommendations, including for fully vaccinated individuals in certain
circumstances, and have issued other guidance in an effort to combat the increase
in coronavirus cases. On Friday, August 13, the Occupational Health and Safety
Administration (“OSHA”) issued updated guidance containing recommendations to
help employers and workers, which is analogous to recent recommendations made
by the U.S. Centers for Disease Control and Prevention (“CDC”). Employers
should be aware of the various guidelines and recommendations as they continue
to evaluate the best approach for protecting their workforces of vaccinated and
unvaccinated employees, many of whom may be in regular contact with high risk
or unvaccinated family members. Further, effective today, August 16, New York
City is mandating proof of at least one dose of a coronavirus vaccine for a
variety of activities for workers and customers.
OSHA’s Masking Recommendations and Updated Guidance
On August 13, 2021, OSHA revised its COVID-19
guidance to adopt “analogous recommendations” as those issued by the CDC
on July 27 in order to help employers determine “appropriate control measures
to implement” in the workplace. OSHA specifically references the CDC guidance
that even fully vaccinated people wear masks in pubic indoor settings in areas
of substantial or high transmission, and notes that fully vaccinated people may
appropriately choose to wear masks in indoor settings regardless of the community
level of transmission, particularly if they are at risk or have someone in
their household who is at risk or not fully vaccinated. The OSHA guidance is intended
to help protect unvaccinated and at risk workers in “most workplaces” though
healthcare workplaces are covered by separate guidance. OSHA recommends that
employers engage with workers and representatives to implement a multi-layered
approach to protect workers from the spread of COVID-19, including:
- Facilitating employees getting vaccinated.
- As recommended by the CDC, instructing fully vaccinated people who have a known
exposure to someone with suspected or confirmed COVID-19 to get tested 3-5 days
after exposure and to wear a mask in public indoor settings for 14 days or
until they receive a negative test result, and for non-vaccinated people to be
tested immediately and if negative, tested again in 5-7 days after last
exposure or immediately if symptoms develop.
- Implementing social distancing in communal work
areas for unvaccinated or at risk workers.
- Providing face coverings to employees.
- Educating and training workers on COVID-19
policies and procedures.
- Suggesting or requiring unvaccinated customers,
visitors or guests wear face coverings in public facing workplaces and in
public, indoor settings in areas of substantial or high transmission.
- Maintaining ventilation systems and performing
routine cleaning and disinfection.
OSHA also provides industry
specific guidance aimed at workplaces that it identified to be at higher risk
of transmission, such as manufacturing, high volume retail and grocery stores
and other establishments. For unvaccinated and at risk employees, OSHA
recommends a variety of steps for employees to take to protect themselves,
including getting the COVID-19 vaccine.
Masking Recommendations from New
York and New Jersey State and Local Officials
Following the July 27 CDC guidance,
Jersey Governor, Phil Murphy, New
York Governor, Andrew Cuomo and New
York City Mayor, Bill de Blasio, each separately issued recommendations
strongly encouraging even vaccinated people to begin wearing masks indoors,
especially where there is increased risk. While these officials did not impose
mandatory mask requirements for all workplaces, as of today, August 16, New
York City will require proof of at least one coronavirus vaccine dose for
employees and customers in a variety of establishments such as restaurants with
indoor dining, gyms and entertainment centers. Enforcement of this New York City mandate will begin
on September 13.
The CDC and OSHA recommendations are advisory in nature. However, updated
guidance and recommendations from the federal government, as well as state and local officials, are helpful to provide
employers with information and procedures when assessing how to best provide
safe workplaces to their employees.
For New York City establishments such as those with indoor dining
facilities, indoor fitness facilities and indoor entertainment facilities that are
covered by the new mandate, employers will be required to revise their
protocols for employees and patrons. We recommend that all employers stay
informed about updated guidance as they evaluate best practices for their
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