PUBLICATIONS

On January 29, 2021, OSHA issued stronger, more detailed guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, https://www.osha.gov/coronavirus/safework. President Biden had issued an Executive Order on January 21, 2021 calling for OSHA to issue revised guidance by early February. The Executive Order also directed OSHA to consider whether emergency temporary standards are necessary, and if so, to issue an emergency rule by March 15. A number of states with their own workplace safety agencies already have enacted mandatory COVID-19 protection rules, including California, Michigan and Virginia.

The Guidance is intended for most workplaces outside of healthcare. Separate guidance is applicable to healthcare and emergency response settings (CDC guidance). The Guidance makes clear that it creates no new legal obligations and is not a standard or regulation. It states employers should implement COVID-19 prevention programs and should include: “conducting a hazard assessment; identifying a combination of measures that limit the spread of COVID-19 in the workplace; adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace; and implementing protections from retaliation for workers who have COVID-19 related concerns.”

The elements of the recommended COVID-19 prevention program include:

1. Assignment of a workplace coordinator.
2. Identification of where and how workers might be exposed to COVID-19 at work.
3. 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.
4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
5. Establishment of a system for communicating effectively with workers and in a language they understand.
6. Educating and training workers on COVID-19 policies and procedures using accessible formats and in a language they understand.
7. Instructing workers who are infected or potentially infected to stay home and isolate or quarantine.
8. Minimizing the negative impact of quarantine and isolation of workers.
9. Isolating workers who show symptoms at work.
10. Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
11. Providing guidance on screening and testing.
12. Recording and reporting COVID-19 infections and deaths as required by the OSH Act and health departments.
13. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
14. Making a COVID-19 vaccine or vaccination series available at no cost to eligible employees.
15. Not distinguishing between workers who are vaccinated and those who are not. Workers who are vaccinated must continue to follow protective measures because at this time there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.
16. Compliance with all applicable OSHA standards.
     

Each of these elements is discussed in more detail in the Guidance as well as other protective measures. OSHA notes the CDC estimates that more than fifty percent of the recent spread of COVID-19 is from individuals with no symptoms at the time of spread.

This Guidance is likely the first step toward increasingly detailed and possibly mandatory requirements by OSHA to address COVID-19 in the workplace. In the meantime, employers should continue to monitor and follow CDC and OSHA guidance related to COVID-19. The OSH Act’s 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. In conducting investigations involving COVID-19, OSHA has considered an employer’s good faith efforts to comply with safety and health standards and guidance when determining whether it cites a violation.

If you have any questions regarding this Alert, please contact the author, Rick Warren, rwarren@fordharrison.com, a partner in our Atlanta office, co-chair of the firm’s Restaurant Practice Group and a member of the firm’s Coronavirus Taskforce. You may also contact the FordHarrison attorney with whom you usually work.