On Friday, August 13, 2021, OSHA issued its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (“Guidance”). In the Guidance, 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.” OSHA wants employers to encourage its employees to be vaccinated. In addition, OSHA wants companies to implement multiple layers of controls, such as removing from the workplace people who are infected or have symptoms and people who are not fully vaccinated who have had close contact with someone with COVID-19. OSHA lists “fundamental controls” as including ventilation systems, physical distancing, properly using face coverings and proper cleaning. Whether OSHA will issue monetary penalties for failure to comply with the Guidance because of a violation of OSHA’s General Duty Clause remains to be seen.
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