On January 29, 2021, the Occupational Safety and Health Administration (“OSHA”) published revised COVID-19 guidance (“Guidance”) to help employers identify COVID-19 risks and determine appropriate control measures. Our Labor & Employment team breaks down the Guidance for employers. The move came following an order from President Biden directing OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.
It is important to note the Guidance is not legally binding and does not create any new standards or regulations. It merely contains recommendations, advisory in nature, intended to assist employers in recognizing risks and implementing appropriate control measures in order to provide a safe workplace. Although the Guidance does not have the force of law, employers would be wise to follow the Guidance for several reasons.
First, President Biden has ordered OSHA, by March 15, 2021, to answer whether “any emergency temporary standards on COVID-19” are necessary. It seems logical that the Guidance will lay the groundwork for any future mandatory OSHA COVID-19 standards. Second, employers should anticipate compliance officers using the Guidance as direction when assessing a business’s obligation to provide a workplace “free from recognized hazards” pursuant to OSHA’s General Duty Clause. Lastly, in the ever-fluctuating COVID-19 world, the Guidance may prompt states to change their guidelines accordingly. Thus, although it is not binding, the Guidance may provide a glimpse into future OSHA regulations. It serves as a roadmap for employers to plan ahead.
I. What We Know
Many portions of the Guidance are not new. The Guidance combined previously issued suggestions from OSHA, the Centers for Disease Control and Prevention (“CDC”), and various state orders issued throughout the pandemic. For example, the best way for employers and employees to protect themselves is to:
- Physically distance by maintaining a distance of at least 6 feet (about 2 arm lengths);
- Practice good personal hygiene;
- Monitor health daily and be alert for COVID-19 symptoms (e.g., fever, cough, shortness of breath, or other symptoms);
- Wear face coverings, even if a person does not feel sick (the CDC recommends face coverings be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents).
II. What’s New
However, some portions of the Guidance are new. For example, the Guidance recommends that employers should:
- Provide COVID-19 vaccines to eligible employees free of charge;
- Provide training and education about vaccines;
- Not distinguish between vaccinated and unvaccinated workers as, according to the CDC, there is no evidence at this time that COVID-19 vaccines prevent transmission of the virus from person-to-person. Thus, vaccinated workers are not exempted from following the Guidance;
- Not unnecessarily require a negative test result or a doctor’s note as a prerequisite to return to work as some workers may test positive, for three months or more, after recovering from COVID-19 symptoms and not represent a risk to others;
- Provide all employees with face coverings (cloth face coverings or surgical masks) free of charge. This is somewhat of a significant change as OSHA had not previously pressured employers to purchase masks for employees; however, New York, on the other hand, has already mandated that employers, free of charge, provide employees with masks;
- Continue to inform employees that face coverings are not a replacement for physical distancing or handwashing;
- Require employees and other individuals in the workplace to wear face coverings;
- Place posters in work areas encouraging hand hygiene and physical distancing; and
- Implement a COVID-19 workplace prevention program.
Perhaps the most significant portion of the Guidance is the “workplace prevention program.”
The workplace prevention program suggests that employers should:
- Assign a workplace coordinator responsible for COVID-19 issues on the employer’s behalf;
- Conduct a hazard assessment with employee (and, if applicable, union) involvement;
- Identify measures that limit the spread of COVID-19 utilizing a hierarchy of controls, such as: physical barriers; physical distancing; face coverings; improved ventilation; PPE usage; and routine cleaning and disinfecting;
- Accommodate workers at higher risk for severe illness;
- Communicate with and train employees in a language they understand;
- Instruct employees who are infected, or potentially infected, to stay at home, isolate, and quarantine to minimize any negative impact on other employees;
- Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the workplace; and
- Provide anonymous complaint protocols to protect employees from retaliation.
III. Moving Forward
Again, the Guidance is not legally binding and does not create any new standards or regulations; however, the Guidance comes directly from an order by a new administration determined to deliver “tougher” OSHA enforcement. If some form of this Guidance becomes mandatory OSHA standards on or before March 15, 2021, employers should expect strict enforcement, fines, and negative publicity if found in violation. If your business is not already in compliance, proactively implanting measures to ensure compliance is the best, most risk averse step you can take.