On September 24, 2021, the Biden Administration’s Safer Federal Workforce Task Force issued Covid-19 workplace safety guidance for federal contractors and subcontractors. The 14-page guidance provides that “covered contractor employees” must be fully vaccinated by December 8, 2021, unless a religious or medical exemption applies. There is no testing option for employees who choose not to be vaccinated and individuals are considered “fully vaccinated” two weeks after receiving the second dose of an approved vaccine. The mandate applies to all full-time and part-time employees of a covered contractor, subject to a few limited exceptions such as medical or religious exemptions, as well as certain employees who work at a location that has no nexus to the federal contract or subcontract or remote employees who perform no work relating to the contract or subcontract. The mandate, however, does apply to employees (remote or otherwise) who are only indirectly involved in supporting a government contract.

The mandate contains several other requirements, including, but not limited to:

  • requiring covered employees to follow CDC masking and physical distancing obligations
  • requiring covered employers to designate a Covid-19 safety coordinator to coordinate and implement the requirements of the mandate

The key question in implementing this mandate will be: who is a covered employer? Generally speaking, the mandate will apply to federal contracts for services, construction, a leasehold interest in real property or if the contract is in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.

Questions will undoubtedly remain regarding the scope and coverage of the mandate, as well as how exemptions are to be applied. Frantz Ward will continue to monitor updates related to the federal mandate guidance. In the meantime, covered contractors should begin to implement steps now to comply with the guidance.

Feel free to reach out to a member of Frantz Ward’s Labor and Employment Group with questions.

On September 29, 2021, the General Counsel of the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a Guidance Memorandum memorializing her position that student-athletes at private universities should be considered “employees” under the National Labor Relations Act (NLRA).

The NLRB has never  directly answered the question of whether student-athletes are employees under the NLRA.  It nearly did so in 2015, when members of the Northwestern University football team attempted to unionize. Instead, the Board declined to exercise jurisdiction on grounds that the novelty of the players’ petition and its impacts on college sports would not have promoted “stability in labor relations.”

Since the Northwestern decision, as GC Abruzzo explained in her Memorandum, the concept of student-athletes as employees has gained broader acceptance in the law.  First came the landmark U.S. Supreme Court decision in NCAA v. Alston, 141 S. Ct. 2141 (2021), which held that the National Collegiate Athletic Association (NCAA) violated federal antitrust laws by prohibiting its member schools from providing student-athletes with certain education-related benefits. In his concurring opinion, Justice Kavanaugh went a step further and questioned whether the NCAA and universities can continue to justify not paying student-athletes for the revenues they generate. He also suggested that one mechanism for resolving compensation disputes between players and universities is by “engaging in collective bargaining.”

Then shortly after Alston, the NCAA suspended its rules prohibiting amateur athletes from profiting off of their name, image, and likeness (“NIL”)—a decision the NCAA made as several state laws throughout the country were set to grant NIL rights to players. As a result, student-athletes may now capitalize on their status to earn significant compensation in myriad ways, from endorsement deals to social media revenues to private tennis lessons.

GC Abruzzo’s memorandum builds on these shifting views and states her position that student-athletes should receive the protections afforded to employees under the NLRA. This includes the right to form and join unions and require their schools to bargain collectively over the terms and conditions of their employment. Granting athletes NLRA protections would also subject schools who interfere with these rights to liability for unfair labor practices, and it could force them to defend disciplinary decisions under contractual grievance procedures.

Importantly, GC Abruzzo’s memorandum is not binding authority; it does not reflect a change in the NLRA. In order for student-athletes to achieve the protections she seeks, GC Abruzzo’s position will need to be considered and adopted by the Board itself. This is typically done through administrative litigation, which requires plaintiff/student-athletes to assert their employee status before the Board in the right type of case. That process may take many months or even a couple of years, but it is likely coming soon. When we reach that point, it will be interesting to see if and how the NLRB draws the lines.

For example, would the protections be limited to major revenue-generating sports at a handful of Division I schools, or would they apply to all sports at all private universities?  Would they apply to student-athletes or also to student interns, managers, and athletic trainers?  Would they be limited to sports or include non-athletic extra-curricular activities? And would bargaining subjects be limited to major decisions like revenue sharing and scholarship allocation, or would they include starting line-up decisions and playing time allocations? These are just a few of the complex issues the Board would need to resolve in order to answer the ultimate question: that is, can employee protections feasibly be granted to student-participants in extracurricular activities in a way that promotes stable labor relations?

It will also be  interesting to see whether GC Abruzzo’s memorandum and these other pro-athlete/employee decisions gain traction in other contexts. Although athletes at private universities may soon be considered employees under the NLRA, the NLRB only has jurisdiction over private universities. Will state agencies follows suit and grant similar protections to students at public universities like Ohio State? And will student-athletes be granted minimum-wage rights under the FLSA, or leave rights under the FMLA?  Such claims have been uniformly rejected by courts so far (including in the recent decision of Dawson v. National Collegiate Athletic Association, 932 F.3d 905 (9th Cir. 2019), wherein the court held that a USC football player was not an employee for wage and hour purposes).  But if these recent decisions signal anything, it’s that the student-athlete employment game is far from over; it may just be beginning.

On September 22, 2021, the U.S. Department of Labor (“DOL”) finalized a regulation which allows for penalties up to $1,100 per violation, plus back wages owed, whenever the DOL finds tipped workers have been cheated of tips.  Previously, a Trump Administration rule, which was never finalized, only allowed fines to be imposed for “repeated and willful” violations.  The new penalty provisions apply when employers, supervisors or managers keep tips intended for tipped workers such as servers, bartenders and the like.  The removal of the “repeated and willful” language from the text of the final rule presumably provides the DOL more flexibility to determine when penalties are warranted.  The final rule also addresses circumstances when supervisors or managers are permitted to retain tips and when they can contribute tips to a tip pool.  The final rule goes into effect November 23, 2021.

On Thursday September 9, 2021, President Biden outlined a multi-pronged plan to reduce the number of unvaccinated Americans in the United States, among other COVID-related initiatives.  In addition to issuing an Executive Order implementing vaccination requirements for federal workers and requiring vaccinations for healthcare workers, President Biden also directed The Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule impacting private employers with more than 100 employees.  The rule will be implemented through the Emergency Temporary Standard (“ETS”), which expedites the otherwise years-long process of developing standards in the event workers are exposed to “grave danger” and the ETS is needed to protect them.  The anticipated ETS will require a “fully vaccinated” workforce or require unvaccinated workers to produce a negative test result on at least a weekly basis before coming to work.

No other specifics of the yet-to-be-implemented ETS have been shared by the Administration or OSHA, but the following are questions beleaguered and financially stretched employers hope will be addressed by OSHA in the coming weeks, particularly given current delays and restricted availability of testing across the country:

  1. Who counts towards the 100+ employee threshold? Will OSHA use the same “Controlled Group” definition as in the Families First Coronavirus Response Act (“FFCRA”)? Should only W-2 employees be counted?  Should work-from-home/remote workers be included?
  2. Will weekly testing an option be available to all employees or only those who demonstrate a valid medical or religious exemption? In other words, will the ETS allow employers to choose between mandatory vaccination vs. mandatory testing in order to retain reticent workers and maintain already precarious workforces?
  3. Will implementing the vaccine mandate be subject to mandatory bargaining under Collective Bargaining Agreements?
  4. Who will be responsible for the cost of COVID-19 testing, employers or employees?
  5. Will the federal government provide financial assistance to pay for additional testing costs?
  6. Will time spent getting weekly COVID tests (and waiting for test results before being permitted to come to work) be compensable time under the Fair Labor Standards Act?
  7. What test results will be acceptable (at-home, rapid, or PCR)?
  8. What information will employers be permitted to ask employees to determine the authenticity of test results and vaccine status?
  9. How will OSHA define “per violation” for purposes of levying citations and the associated $14,000 penalty (one per employer, one per facility, one per unvaccinated/untested employee)?
  10. Will the ETS modify OSHA’s recordkeeping requirements that employee medical records be maintained by employers for the duration of employment plus 30 years thereafter?
  11. Will the ETS be prospective or retroactive such that those already vaccinated will be required to demonstrate proof of vaccination?
  12. Will this regulation cover future vaccine boosters the Administration has stated it is prepared to begin offering a week from today on September 20, 2021?
  13. Will employers be required to provide vaccination incentives to employees under any existing incentive policies?

Although the White House has indicated more guidance will be forthcoming by September 24, 2021, the ETS is not expected for at least a few weeks, no effective date for the ETS or deadlines for vaccination have been offered.  Legal challenges are also being weighed that may delay, stay or vacate the rule once it is issued.

Frantz Ward will provide updates when the ETS is issued.  In the meantime, employers should seek counsel who are familiar with dealing with OSHA, encourage employees to become vaccinated before the ETS is issued, examine their record retention and accommodation policies, and begin to evaluate internal HRIS systems and capabilities for data collection and tracking purposes.

NLRB General Counsel Jennifer A. Abruzzo followed up her 10(j)-warning shot with another admonition, this time encouraging regions to request the “full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.”

General Counsel Abruzzo began her September 8, 2021, Memorandum (GC21-06) by reminding the public that the Board has expressed “a willingness to explore a new make-whole remedy to those traditionally ordered: an award of consequential damages to make employees whole for economic losses (apart from the loss of pay or benefits) suffered as a direct and foreseeable result of an employer’s unfair labor practice.” Consequential damages, however, are not the only new remedies she hopes will be utilized in the near future. Indeed, Memorandum GC21-06 outlined extensive new potential remedies that General Counsel Abruzzo wants to explore in three major unfair labor practice areas, those being; (1) alleged wrongful terminations, (2) organizing campaigns issues, and (3) refusals to bargain. Per the General Counsel, potential remedies that Regions should seek include:

Remedies in Cases Involving Unlawful Firings:

  • Consequential damages, Front pay, Liquidated backpay;
  • Remedies previously highlighted in GC Memorandum 15-03, such as notice readings, publication of the notice in newspapers, and/or other forums, training for employees on their rights under the Act, training for supervisors and managers on compliance with the Act, Gissel bargaining orders, union access to employee contact information, reimbursement for organizing or bargaining expenses, consequential damages, instatement of qualified referred candidates, and any other remedies that may be appropriate in a particular case; and,
  • Compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations, and any other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers.

Remedies in Cases Involving Organizing Campaign Issues:

  • Union access;
  • Reimbursement of organizational costs;
  • Reading of the Notice to Employees and the Explanation of Rights to employees by a principal or, in the alternative, by a Board Agent, in the presence of supervisors and managers, with union representatives being permitted to attend all such readings, or, where appropriate, video recording of the reading of the notice and the Explanation of Rights, with the recording being distributed to employees by electronic means or by mail;
  • Publication of the notice in newspapers and/or other forums (such as online publications and websites maintained by an employer, including social media websites), chosen by the Regional Director and paid for by the employer, so as to reach all current and former affected employees, as well as future potential hires;
  • Visitorial and discovery clauses to assist the Agency in monitoring compliance with the Board’s Orders;
  • Extended posting periods for notices where the unfair labor practices have been pervasive and occurred over significant periods of time;
  • Distribution of notices and the Board’s Orders to current and new supervisors and managers
  • Training of employees, including supervisors and managers, both current and new, on employees’ rights under the Act and/or compliance with the Board’s Orders;
  • Instatement of a qualified applicant of the union’s choice in the event a discharged employee is unable to return to work; and,
  • Broad cease-and-desist orders requiring violating parties to cease and desist “in any other manner” from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.

Remedies in Cases Involving Refusals to Bargain

  • Bargaining schedules;
  • Submission of periodic progress reports to the Agency on the status of bargaining;
  • 12-month insulation periods, including extensions of the certification year, from the date an employer commences compliance with its bargaining obligations pursuant to a Board’s Order, during which a union’s status as bargaining representative may not be challenged;
  • Reinstatement of unlawfully withdrawn bargaining proposals;
  • Reimbursement of collective-bargaining expenses;
  • Engagement of a mediator from the Federal Mediation and Conciliation Service (FMCS) to help facilitate good-faith bargaining between parties;
  • Training of current and/or new supervisors and managers in cases involving failures to bargain; and,
  • Broad case-and-desist orders.

While the General Counsel’s list of potential new remedies is extensive, it is not exhaustive. The General Counsel took care to indicate that she, and therefore the Board, will spare no level of creativity to provide what she considers “the most effective relief possible.” The listed potential remedies, however, show that the Board looks to become deeply involved in the labor management relationship when imposing unfair labor practice penalties. These remedies have the potential to not only financially impact employers, but also impact the level of control employers have going forward. Employers should take notice of the General Counsel’s must recent warning shot.

If you have any questions regarding the General Counsel’s memorandum, potential remedies, or issues related to labor and employment law, feel free to contact an attorney in Frantz Ward’s labor & employment group.

In July, the Department of Labor (“DOL”) announced a Notice of Proposed Rule Making to develop enforcement and implementation procedures for President Biden’s Executive Order 14026. Executive Order 14026, which was signed on April 27, 2021, requires federal contractors to pay their employees at least $15.00 per hour beginning January 30, 2022. Beginning January 1, 2023, and each year annually, the minimum wage for employees of federal contractors will increase based upon inflation. The current minimum wage for federal contractor employees is $10.95.

The minimum wage for federal contractors was last raised in January 2015 following the implementation of President Obama’s Executive Order 13658, which raised the wage to $10.10 with an annual increase based upon inflation.

The DOL’s proposed rule includes the following:

  • An anti-retaliation provision;
  • DOL procedures for addressing employee complaints, investigations, and adjudication;
  • A clause to be included in all covered contracts; and
  • A poster outlining the updated minimum wage to be posted in a conspicuous place.

The public comment period for the proposed rule closed on August 23, 2021, paving the way for finalizing the rule. The final rule is expected to be released by the DOL in November 2021. As currently written, the rule will only apply to contracts entered, renewed, or extended after January 30, 2022. Accordingly, federal contractors with current contracts may not need to implement the wage increase immediately.

Almost immediately after the FDA issued full approval of the Pfizer/BioNTech COVID-19 vaccine earlier this week, employers began rolling out mandatory vaccination policies. These policies are raising a variety of legal and practical questions for employers, including whether employers are required to compensate employees for time spent getting the vaccine.

Although the answer to this question remains unclear in some states, it is crystal clear in others. In California, for example, the Labor Commissioner issued guidance specifically requiring employers to pay employees for time spent getting a mandated test or vaccine. This guidance explained in part that, “If the employer requires an employee to obtain a COVID-19 test or vaccination . . . then the employer must pay for the time it takes for the testing or vaccination, including travel time.” https://www.dir.ca.gov/dlse/COVID19resources/FAQs-Testing-Vaccine.html

A related question is whether employers have to have to pay for the actual vaccine if they require their employees to get it. California law clearly requires employers to pay this cost, but the law in many other states remains unsettled.

State legislatures and administrative agencies will almost certainly face pressure to provide clear guidance on these and other COVID-19 vaccine issues. Until that happens, employers are wise to proceed with caution.

Sparing no time since she issued her Advice Memorandum last week, NLRB General Counsel Jennifer Abruzzo issued GC released Memorandum GC 21-05, outlining her position on the importance of 10(j) injunction proceedings.

Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek temporary injunctions in federal district courts to stop alleged unfair labor practices (including maintaining the “status quo”) while the case is being litigated before the NLRB. While 10(j) injunctions have long been understood to be a powerful tool at the General Counsel’s disposal, how often they are used has generally been dependent on the political party in power. While the General Counsel must seek authorization from the Board prior to proceeding to court to obtain a 10(j) injunction, Memorandum GC 21-05 certainly suggests the Board appears poised to utilize 10(j) injunctions more than the prior administration.

General Counsel Abruzzo’s memorandum makes clear, however, that she will not shy away from using 10(j) injunctions to “timely protect employees’ Section 7 rights.” General Counsel Abruzzo firmly believes 10(j) injunctions have led to positive results in ensuring the protection of employees’ rights. As such, she intends “to aggressively seek Section 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders.”

Employers should take notice of the General Counsel’s warning, and should not be surprised if more Board investigators mention 10(j) injunctions early in unfair labor practice investigations. Employers should also think critically about charges and allegations that may raise 10(j) concerns at the Board, and work swiftly to ensure their position does not warrant court involvement.

If you have any questions regarding the General Counsel’s memorandum, 10(j) injunctions, or issues related to labor and employment law, feel free to contact an attorney in Frantz Ward’s Labor & Employment Practice Group.

On August 12, 2021 NLRB General Counsel Jennifer A. Abruzzo issued her “Mandatory Submissions to Advice” memorandum (Memorandum GC 21-04), outlining her agenda items and priority issues for NLRB Regional Directors, Officers-in-Charge, and Resident Officers. The memorandum offers a glimpse into a number of issues the new General Counsel believes need to be re-evaluated, largely because, as she indicated in the memo, the prior Board “overrul[ed] many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.” Given the current political climate, and the position of the General Counsel, employers can expect significant NLRB policy changes in the coming years.

The memo is divided into three sections. The first section Identifying “doctrinal shifts” of the past several years. The memorandum identifies 11 precedential topics she will be focusing on, likely to the detriment of employers, those being:

  • Employer Handbook rules
  • Confidentiality provisions/Separation agreements and instructions
  • What constitutes protected concerted activity
  • Wright Line/General Counsel’s burden
  • Remedial issues
  • Union access
  • Union dues
  • Employee status
  • Board jurisdiction over religious institutions
  • Employer duty to recognize and/or bargain
  • Deferral

The second section identifies seven additional areas and initiatives the General Counsel wants to carefully examine during her tenure, including: (1) Employee status, (2) Weingarten, (3) National Mediation Board vs. NLRB jurisdiction, (4) Employer duty to recognize and/or bargain, (5) Employees’ Section 7 right to strike and/or picket, (6) Remedies and compliance, and (7) Employer interference with employees’ Section 7 rights.

The third and final section identifies a litany of other casehandling matters the General Counsel will be focusing on, ranging from cases involving injunctions, partial lockouts, and the need to harmonize the NLRA with local, state and other federal statutes.

While the General Counsel’s memorandum is extensive, it only generally outlines topics that General Counsel, and presumably the Biden administration, will be focusing on over the next several years. It is not entirely clear how the General Counsel plans to change the matters identified. It is fair to assume, however, that the General Counsel will focus on changing the identified topics in such a way to further protect employees and their right to collectively bargain. At this time we don’t know precisely what changes will be made, but it is fair to assume the Board will seek to reimplement prior-democratic era changes will be made, but it is fair to assume the Board will seek to reimplement prior-democratic era interpretations of the issues identified. Unless and until a case is actually before the NLRB, how the current law will be changed is unknown.

Based on the topics covered in the General Counsel’s memorandum, employers approaching collective bargaining should think strategically about the current state of their management’s rights clauses, and other reserved rights as outlined in their CBA. The General Counsel may very well focus on specific rights and waivers outlined in the CBA. Employers should likely proceed with trying to obtain contract language that is as specific as possible in the near future.

Employers should also be thinking more critically about what constitutes protected concerted activity, looking closely at workplace rules that may be focused on limiting certain speech or behavior at work. This exercise should also not be limited to unionized employers as non-union employees have Weingarten rights, and a proactive Board will seek to ensure that standard is maintained, and potentially even expanded. Non-union employers need to be on guard for expansive labor policies that the new General Counsel could seek to enforce, likely attempting to distance the current Board from policies implemented and utilized during the Trump administration.

If you have any questions regarding the General Counsel’s memorandum, or issues related to labor and employment law, feel free to contact an attorney in Frantz Ward’s labor & employment group.

Today OSHA updated its previously issued “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”  The updates focus on: 1) helping employers protect unvaccinated workers (including those who are only partially vaccinated) or otherwise at risk (including those who are immunocompromised; and 2) implementing new guidance involving fully-vaccinated workers located in areas of substantial or high community transmission.  They also highlight high-risk industries, including manufacturing, and provide additional recommendations for those industries.

General Recommendations for all Workplaces

Noting updated evidence and information issued by the CDC on July 28, 2021, and preliminary evidence suggesting that fully vaccinated people who do become infected with the Delta variant can be infectious and can spread the virus to others, OSHA has largely adopted the CDC’s recommendations, noting specifically that “employers should “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.”

Citing the OSH Act’s General Duty Clause, as well as its established standards that remain in place regarding PPE, respiratory protection, sanitation, bloodborne pathogens and access to medical and exposure records, OSHA offers the following multi-layered interventions on which employers should engage with workers and representatives and consider implementing (many of which are included in existing COVID-19 prevention programs):

  1. Facilitating employee vaccinations, including granting paid time off for employees to get vaccinated and recover from any side effects and 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.
  2. Instructing workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work, including ensuring that absence policies are non-punitive and eliminating or revising policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19.
  3. Implementing 6 feet of physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers, including limiting the number of unvaccinated or otherwise at-risk workers in one place at any given time and using transparent shields or other solid barriers to separate workers at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people.
  4. Providing workers with face coverings or surgical masks at no cost as appropriate, unless their work task requires a respirator or other PPE and while providing reasonable accommodations for workers unable to wear or who have difficulty wearing certain types of face coverings due to a disability or based on a religious accommodation under federal anti-discrimination laws.
  5. Educating and training workers on COVID-19 policies and procedures using accessible formats and in language they understand, including training management and non-management employees, contractors and visitors on policy implementation and the risks of contracting COVID-19 and the Delta variant.
  6. Suggesting or requiring that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission based on the CDC’s Integrated COVID-19 County Tracking System
  7. Maintaining and Improving Ventilation Systems, some options for which are discussed in the CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.
  8. Performing routine cleaning and disinfection, including following CDC cleaning and disinfection recommendations if someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, as well as mandatory OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
  9. Recording and reporting COVID-19 infections and deaths under OSHA’s mandatory rules in 29 CFR part 1904 for work-related cases of COVID-19 illness if: 1) the case is a confirmed case of COVID-19; 2) the case is work-related (as defined by 29 CFR 1904.5); and 3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work).
  10. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards, being mindful of Section 11(c) of the OSH Act, which prohibits various adverse actions against employees who engage in various protected activities, and ensuring workers know whom to contact with questions or concerns about workplace safety and health (ideally using a hotline or other method for workers to voice concerns anonymously).
  11. Following other applicable mandatory OSHA standards that apply to protecting workers from infection remain in place, including PPE (29 CFR part 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), OSHA’s requirements for employee access to medical and exposure records (29 CFR 1910.1020), and OSHA’s mandatory Emergency Temporary standard for many healthcare workplaces.

Additional Recommendations for High-Risk Workplaces, Including Manufacturing Settings

In addition to those general recommendations described above, OSHA also provides in its updates certain best practices for higher-risk workplaces – which include manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings – to protect unvaccinated and otherwise at-risk workers.

In all workplaces with heightened risk due to workplace environmental factors where there are unvaccinated or otherwise at-risk workers in the workplace, OSHA recommends that employers:

  • Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Such workers should maintain at least 6 feet of distance from others at all times, including on breaks.
  • Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk workers in parking areas, locker rooms, and near time clocks.
  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
  • Require unvaccinated or otherwise at-risk workers, and also fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible, encourage and consider requiring customers and other visitors to do the same.
  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace, and ASHRAE Guidance for Building Operations and Industrial Settings During the COVID-19 Pandemic.

In meat, poultry, and seafood processing settings; manufacturing facilities; and assembly line operations (including in agriculture) involving unvaccinated and otherwise at-risk workers, OSHA recommends that employers:

  • Ensure adequate ventilation in the facility, or if feasible, move work outdoors.
  • Space such workers out, ideally at least 6 feet apart, and ensure that such workers are not working directly across from one another. Barriers are not a replacement for worker use of face coverings and physical distancing.
  • If barriers are used where physical distancing cannot be maintained, they should be made of a solid, impermeable material, like plastic or acrylic, that can be easily cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used.
  • Barriers do not replace the need for physical distancing – at least six feet of separation should be maintained between unvaccinated and otherwise at-risk individuals whenever possible.

It is important to note that while OSHA specifically qualifies its updates as “advisory in nature and informational in content,” employers should anticipate that OSHA inquiries will include questions regarding some or all of the foregoing recommendations on a going forward basis.