As COVID-19 Cases Rise Again, New Federal and State Health and Safety Rules Diverge Dramatically

Employers are having to keep on their toes when it comes to protecting employees from COVID-19. Shifts in the outbreak continue to drive rapidly changing workplace health and safety rules in the Pacific Northwest, and this is leading to dramatically different requirements being imposed by federal and state authorities. No sooner had many employers considered relaxing mask mandates and return to work policies according to federal Occupational Safety and Health Administration (OSHA) guidelines, when the later summer rise in COVID-19 cases led OSHA to publish new guidance on August 13, 2021, reinstituting some restrictions. At the same time, local and state health authorities in the Pacific Northwest have imposed new safety and health requirements, including mask mandates. To help employers with the dizzying array of changing requirements, we summarize some of those key requirements below.

What Do Employers Need to Know About OSHA’s Recent Guidance?

The latest OSHA guidance entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace states that unvaccinated or at-risk employees should wear face coverings indoors, maintain social distancing, participate in training, practice good hygiene, and get tested regularly in places of substantial or high community transmission. However, OSHA’s guidance still indicates that unvaccinated or at-risk employees working outdoors may choose to work without wearing face coverings. OSHA’s guidance for fully vaccinated employees mirrors that published by the Center for Disease Control and Prevention (CDC), with both federal agencies recommending that vaccinated employees:

  • Wear a mask in public indoor settings in areas of substantial or high transmission;
  • Consider wearing a mask regardless of level of transmission; and
  • Get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19, and wear a mask in public indoor settings for 14 days after exposure or until a negative test result.

OSHA’s guidance further encourages employers to work with employees to implement multi-layered interventions to protect unvaccinated or at-risk workers and mitigate the spread of COVID-19. OSHA recommends that employers consider the following measures to mitigate and prevent COVID-19 from spreading in the workplace:

  • Grant paid time off for employees to get vaccinated and recover from its side effects;
  • Instruct workers to stay home if they are (1) infected, (2) unvaccinated and come into close contact with someone that tested positive, or (3) experience any COVID-19 symptoms;
  • Suggest or require (1) unvaccinated customers, visitors, or guests to wear face coverings in public-facing workplaces, and (2) all customers, visitors, or guests to wear face coverings in public indoor settings in areas with substantial or high transmission;
  • Continue social distancing and limiting the number of unvaccinated or at-risk employees in communal areas;
  • Educate and train workers on the company’s COVID-19 policies and procedures, and protect workers from retaliation through an anonymous complaint process;
  • Maintain or improve ventilation systems;
  • Perform routine cleaning and disinfection; and
  • Record and report COVID-19 infections and deaths as required under the mandatory OSHA rules in 29 C.F.R. § 1904, as well as following any other OSHA regulations applicable to the employer.

OSHA’s guidance further suggests that employers should assess whether their workplace is considered “higher-risk” and should implement additional protections, based on the following factors:

  • Whether employees work in close proximity to one another, such as production/assembly lines, busy retail settings, or when clocking in/out, during breaks, or in locker/changing rooms;
  • Have prolonged closeness to coworkers, such as for 6-12 hours per shift;
  • Work in spaces where respiratory particles can be more easily transmitted, such as poorly ventilated spaces, or common surfaces or objects; or
  • Other factors such as (1) shared transportation, (2) frequent contact with other individuals in the community, or (3) communal living quarters.

For higher-risk workplaces, OSHA’s guidance suggests that employers take additional precautions, including:

  • Staggering break times, time punching, and arrival/departure times;
  • Expanding breakrooms and restrooms;
  • Improving ventilation and barriers; and
  • Adding visual cues for social distancing.

OSHA’s guidance is directed to all industries that are not specifically addressed otherwise (such as the healthcare industry). Importantly, OSHA’s guidance states that it “is not a standard or regulation, and it creates no new legal obligations” — except where mandatory OSHA standards exist. This should give some comfort to those employers who are not currently complying with OSHA’s guidance, but it also does not provide immunity to employers. Indeed, employers remain obligated under the general duty clause of the federal Occupational Safety and Health Act of 1970 to provide employees with a “place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.”

What Do Pacific Northwest Employers Need to Know About State and Local Health and Safety Rules?

Certain states, such as Oregon and Washington, administer their own OSHA plans. These state plans typically replace or supplement federal OSHA standards, and often impose rules that exceed federal OSHA guidelines, impose additional health and safety requirements, and may even impose penalties and provide enforcement obligations.

Oregon’s Updated OSHA Guidelines: The state of Oregon administers its own state plan that is enforced by “Oregon OSHA,” an agency located in the state’s Department of Consumer and Business Services. Similar to federal OSHA’s guidelines, Oregon OSHA amended its administrative rules on June 30, rolling back some of the existing COVID-19 safety protocols. This was revised again on August 13 and 27, 2021, to account for the rise in COVID-19 cases. Oregon’s latest rules (12, and 3) impose the following requirements on employers with Oregon operations:

  • Physical distancing and regular cleaning/sanitation requirements are no longer required (consistent with the June 30 changes);
  • Face covering requirements are again required. In particular, vaccinated and unvaccinated people must wear masks when (1) indoors and (2) outdoors if six feet of distance cannot be maintained. Exceptions exist for individuals in private individual workspaces, and many specific activities (generally unrelated to employment);
  • Employers responsible for indoor or outdoor spaces must (1) ensure that employees, contractors, and volunteers comply with the above rules, (2) make reasonable efforts to ensure customers, guests, visitors, or other individuals comply with the above rules, and (3) post signs at every entrance to the indoor or outdoor spaces describing the face covering rules.
  • Employers must also still comply with requirements to (1) conduct routine ventilation maintenance and evaluation, (2) conduct an exposure risk assessment, (3) establish and implement an infection control plan, (4) establish and implement a process to notify exposed employees regarding work-related contact with a COVID-19 positive individual, (5) provide testing when requested by a local or state health agency, and (6) comply with quarantining requirements when an employee is exposed or infected.

Washington L&I’s Updated Guidelines: Washington also administers its own state plan. It is enforced by the Department of Labor and Industries (L&I), Division of Occupational Safety and Health (DOSH). The L&I Requirements and Guidance for Preventing COVID-19, published by DOSH on August 23, 2021, imposes different requirements on employers in public spaces and non-public spaces. For employers in public spaces, they must do the following to maintain a safe, COVID-free work environment:

  • Face coverings must be worn by customers and employees in indoor spaces accessible to the public, regardless of vaccination status;
  • Businesses must post signage visible to customers at each entry describing the face covering requirements;
  • Employees with possible or confirmed COVID-19 infection must be permitted to isolate and quarantine;
  • Handwashing facilities and supplies must be made available;
  • Employees must be trained to recognize and respond to workplace hazards; and
  • Employers must assess recognized and potential hazards, and take additional steps to protect all employees.

For employers in non-public spaces, they must do the following:

  • Fully vaccinated employees in non-public indoor spaces may be permitted to remove face coverings, but employers must verify their vaccination status before permitting removal; and
  • Vaccinated or unvaccinated employees may remove face coverings if they are “working alone” — if they are isolated from interactions with others and have little to no expectation of in-person interruptions. Examples given include:
  • An employee who is the sole occupant in an office with a closed door who is unlikely to be visited; and
  • Delivery drivers with no face-to-face interaction with others when picking up or dropping off packages.

Finally, L&I’s recent guidance suggests (but does not require):

  • Employers should support and encourage employees to get the vaccine;
  • Continue social distancing between unvaccinated employees;
  • Maximize fresh air and air filtration;
  • Provide masks to workers in outdoor crowded settings, and
  • Provide a mask that is more protective than cloth coverings.

In addition, the Washington Legislature passed the Health Emergency Labor Standards Act (HELSA), which became effective when it was signed by Governor Inslee on May 11. In addition to imposing reporting requirements for large employers with COVID outbreaks, HELSA modified workers’ compensation requirements for frontline workers, and codified Governor Inslee’s high-risk worker proclamation imposing accommodation requirements on employers. L&I has published helpful Questions and Answers About Protecting High-Risk Employees From Discrimination During Public Health Emergencies.

What Should Employers Do Now?

Employers with operations in the Pacific Northwest must remain vigilant. In light of current federal and state health and safety requirements, employers should:

  • Review and update their COVID-19 safety protocols and policies to remain compliant with the current guidance and rules, and continue to monitor new developments and revise their policies as needed;
  • Recognize that employers must comply with all federal, state, and local standards;
  • State OSHA authorities may (and have) imposed penalties for violations;
  • State authorities are adopting mandatory vaccine requirements for certain industries, such as healthcare and education, as reported in our earlier Legal Update;
  • Those employers whose workers are not yet regulated should be prepared for further directives.

Determining how to best approach your workforce and COVID-19 concerns during these uncertain and rapidly evolving times can be challenging.  Our team of professionals is always here to help you navigate through the ever-changing minefield.

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