OSHA Releases New Workplace Guidance on COVID-19

On January 21, 2021, President Biden issued the Executive Order on Protecting Worker Health and Safety (“Executive Order”) directing, among other things, that the federal Occupational Safety and Health Administration (OSHA) issue, within two weeks, revised guidance to employers on workplace safety during the COVID-19 pandemic, consider establishing emergency temporary standards for workplace COVID-19 protections, and, if needed, issue such standards by March 15, 2021. The Executive Order also requires that OSHA launch a national program to focus its enforcement efforts on those violations that place the greatest number of employees at serious risk or conflict with anti-retaliation principles and publicize its efforts through a multilingual outreach campaign to inform employees of their rights under OSHA’s applicable regulations, with special emphasis on communities hit hardest by COVID-19.

On January 29, 2021, as directed by the Executive Order, OSHA issued new guidance, entitled Protecting Workers: Guidance on Mitigation and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). The Guidance, which is supplemented by industry-specific measures, provides recommendations to assist employers in creating and maintaining safe and healthy workplaces, while also describing OSHA’s current safety and health standards. The new Guidance is not substantially different from previous OSHA guidance, but it sets a different tone – signaling greater support for OSHA enforcement. Importantly, the Guidance does not impose any mandatory standards on employers; however, nothing prevents OSHA from using it as a basis for citation under OSHA’s General Duty Clause (requiring employers to provide workplaces that are “free from recognized hazards that are causing or likely to cause death or serious physical harm”). OSHA has stated that it will continue to update its Guidance over time to “reflect developments in science” and “best practices,” and will monitor changes for the “sake of transparency.”

Among other things, OSHA’s new Guidance calls on employers to implement workplace COVID-19 prevention programs (“workplace prevention programs”). As the pandemic approaches the one-year mark in the United States, employers likely already have implemented many of OSHA’s recommendations concerning such programs. Below is a summary of key elements that OSHA recommends that any workplace prevention program include:

• Assign a workplace coordinator who is responsible for COVID-19 issues on the employer’s behalf;
• Conduct a hazard assessment to identify where and how employees might be exposed to COVID-19 at work (OSHA suggests that workers and their representatives be involved in this process);
• Identify control measures to limit the spread of the virus, including separating and sending home infected or potentially infected employees, implementing physical distancing (including remote work and telework), installing barriers where physical distance cannot be maintained, using face coverings, improving ventilation, using personal protective equipment, providing supplies necessary for good hygiene, and performing routine cleaning and disinfecting;
• Consider reasonable accommodations for workers at higher risk, such as allowing telework arrangements;
• Educate and train employees on employer COVID-19 policies and procedures using accessible formats and in a language they understand;
• Minimize the negative impact of quarantine and isolation, which can be done by allowing employees to telework, use paid sick leave, or consider implementing paid leave policies to reduce risk for everyone at the workplace;
• Isolate workers who show symptoms at work, instruct infected or potentially infected workers to isolate or quarantine at home to prevent or reduce the risk of transmission of the virus, and ensure that absence policies are not punitive;
• Perform enhanced cleaning and disinfection after people suspected or confirmed to have COVID-19 have been in the workplace, consistent with CDC recommendations;
• Provide employees with available information on screening and testing in the community;
• Be aware of and comply with OSHA’s recording and reporting obligations concerning COVID-19 infections and deaths;
• Make the COVID-19 vaccine available at no cost to all eligible employees and provide information and training on the benefits and safety of the vaccine;
• Do not differentiate between workers who are vaccinated and those who are not – workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and maintaining physical distance; and
• Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards.

Please see the Guidance for the full list of recommendations along with further details regarding such recommendations.

In light of the current administration’s focus on workplace safety, employers should brace themselves for a new OSHA that likely will take a more aggressive enforcement approach than that of the previous administration. Accordingly, employers should take this time to review their COVID-19 policies and procedures and ensure they are up-to-date with OSHA’s current Guidance (along with any other local, state, or federal requirements concerning COVID-19). To the extent employers are using different controls that do not line up directly with the Guidance, they should contact their attorneys to confirm the alternative approaches in use are reasonable and legally compliant. Employers should also be on the lookout for regularly updated guidance and/or mandatory standards for addressing the many workplace challenges presented by the COVID-19 pandemic and be prepared to quickly address them.

If you have any questions regarding this blog, you should contact any attorney in the Gibbons Employment & Labor Law Department.