February 15, 2021
On Jan. 29, 2021, the Occupational Health and Safety Administration (OSHA) issued new guidance on workplace safety during the COVID-19 pandemic. The guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” is intended to help employers identify workplace risks of exposure and/or infection and determine appropriate control measures “in most workplace settings outside of healthcare.” (OSHA and the Centers for Disease Control (CDC) have issued separate guidelines applicable in healthcare and emergency response settings; the CDC’s healthcare guidelines are here.)
In a press release, OSHA termed the new guidance “stronger” for worker safety than previous guidance. The guidance states that it “creates no new legal obligations” for employers, but it is considered to be a step toward promulgation of an emergency temporary standard on COVID-19 as soon as next month.
The new guidance encourages employers to adopt a plan to mitigate the spread of COVID-19 at work. According to OSHA, an effective prevention plan should include the following “key elements” (the main recommendations that go beyond prior guidance are highlighted in bold text):
- “Assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf.”
- “Identification of where and how workers might be exposed to COVID-19 at work.”
- “Identification of a combination of measures that will limit the spread of COVID-19 in the workplace” – to include providing “all workers with face coverings unless their work task requires a respirator” and “improving ventilation” (the guidance goes into detail on OSHA’s recommendations regarding face coverings and ventilation).
- “Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.”
- “Establishment of a system for communicating effectively with workers and in a language they understand.”
- “Educate and train workers on your COVID-19 policies and procedures.”
- “Instruct workers who are infected or potentially infected to stay home and isolate or quarantine.”
- “Minimize the negative impact of quarantine and isolation on workers,” for example, by “allow[ing] them to telework” or “allow[ing] workers to use paid sick leave.”
- “Isolating workers who show symptoms at work.”
- “Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.”
- “Providing guidance on screening and testing.”
- “Recording and reporting COVID-19 infections and deaths.”
- “Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19–related hazards.”
- “Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.”
- “Not distinguishing between workers who are vaccinated and those who are not.”
- Ensuring compliance with “Other applicable OSHA standards” (such as the personal protective equipment and respiratory standards and the General Duty Clause of the Occupational Safety and Health Act, which requires employers to provide workplaces that are free of known, dangerous hazards that can be feasibly mitigated).
OSHA’s new guidance provides employers an opportunity to review and improve their COVID-19 prevention plans. In considering employer obligations under the General Duty Clause, the guidance gives an indication of the mitigation efforts that the agency is likely to claim are “feasible” to address COVID-19-related hazards. Also, a number of the recommendations in the guidance could become requirements in the expected emergency temporary standard.
If you have questions or need assistance with OSHA compliance, please reach out to the Nexsen Pruet Employment and Labor Law group.