OSHA Issues Enhanced Guidance on COVID-19 in the Workplace, Sets Groundwork for ETS
Following a directive from President Biden, OSHA released updated guidance and recommendations for employers responding to COVID-19. This updated policy, titled "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace," was posted January 29, 2021. The bulk of this policy recommends that employers “should implement COVID-19 prevention programs in the workplace,” and outlines how employers can such a program.
In one of 10 executive orders signed the day after the Inauguration, President Biden issued “Executive Order on Protecting Worker Health and Safety,” which requires OSHA to release revised guidance to employers on workplace safety during the COVID-19 pandemic within two weeks. Additionally, the executive order mandates that OSHA consider emergency temporary standards on COVID-19, and if such standards are determined to be necessary, issue them by March 15, 2021.
OSHA’s recommended COVID-19 prevention program outlines several elements which could become part of a future emergency temporary standard. These elements include designating a workplace coordinator who will be responsible for COVID-19 issues on the employer's behalf; a hazard assessment to identify potential workplace hazards related to COVID-19; implementing a hierarchy of controls including engineering controls, workplace administrative policies, and personal protective equipment; guidance on enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility; training on COVID-19 policies and procedures; and protections for workers who voice concerns about COVID-19-related hazards.
The guidance also recommends that employers provide a COVID-19 vaccine at no cost to eligible employees and that they do not distinguish between vaccinated workers and those who are not vaccinated for purposes of implementing safety measures. The guidance also incorporates CDC recommendations to improve ventilation and for isolating workers who have or likely have COVID-19.
16 Elements of OSHA's Recommended COVID-19 Prevention Programs
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, in line with the principles of the hierarchy of controls.
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 using accessible formats and in a language they understand.
Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19.
Minimize the negative impact of quarantine and isolation on workers.
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: Follow state or local guidance and priorities for screening and viral testing in workplaces.
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.
Following other applicable OSHA Standards.
While the guidance notes that the “recommendations are advisory in nature,” and that the document “creates no new legal obligations,” consistent with the Administrative Procedures Act, OSHA may use the guidance in enforcement for the purpose of clarifying ambiguous provisions in existing regulations. The guidance specifically mentions that the General Duty Clause requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Additionally, the guidance notes that other applicable OSHA standards that apply to protecting workers from infection remain in place. These standards include: requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens and OSHA's requirements for employee access to medical and exposure records.
In September 2020, OSHA issued proposed penalties of $13,494 and $15,615 for alleged violations of the General Duty Clause to two meatpacking plants. In press releases detailing these citations, OSHA cited its own guidance, including recommended measures employers can take to protect workers from the coronavirus, “such as social distancing measures and the use of physical barriers, face shields and face coverings when employees are unable to physically distance at least 6 feet from each other.”
While OSHA’s most likely path to enforcing the recommendations issued in the January 29 guidance is through the General Duty Clause, if the agency issues an emergency temporary standard, they could render the recommendations binding law.