Among other features, the new guidance recommends that employers implement a COVID-19 prevention program and identifies key measures for limiting the spread of COVID-19.
The Occupational Safety and Health Administration (OSHA) issued new employer guidance on January 29 on workplace safety during the COVID-19 pandemic. The guidance was issued in response to President Joe Biden’s January 21, 2021 Executive Order (January 21 EO) on Protecting Worker Health and Safety, which directed the Secretary of Labor to issue revised guidance within two weeks. The guidance, which covers workplace settings outside of the healthcare and emergency response sectors, largely reiterates prior OSHA and Centers for Disease Control and Prevention (CDC) recommendations, but there are some new recommendations that employers should note.
The guidance states that employers should develop and implement a comprehensive written COVID-19 prevention program in the workplace. OSHA recommends that the prevention program engage workers in the program’s development and include the following essential elements: 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 raise COVID-19 related concerns.
Conducting a Hazard Assessment
The guidance recommends that employers conduct a hazard assessment to identify potential workplace hazards related to COVID-19. Any hazard assessment should involve workers, as they are most familiar with the conditions they face, and should include assigning a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf.
Identifying Control Measures to Limit the Spread of COVID-19
The guidance recommends identifying measures that will limit the spread of COVID-19 in the workplace. Appropriate measures would include a combination of hazard elimination, adoption of working engineering controls and administrative policies, and use of personal protective equipment (PPE). The guidance also emphasizes the importance of educating and training workers on COVID-19 policies and procedures, such as by establishing a system for effective communication, ensuring that the communication is accessible to all workers, and that any communication is provided in a language and format that workers understand. This includes providing information and training on the benefits and safety of COVID-19 vaccinations.
Adopting Policies to Ensure That Infected or Potentially Infected Workers Are Isolated and/or Remain at Home
In the guidance, OSHA notes the critical importance of preventing or reducing the risk of transmission of COVID-19. Accordingly, the agency provides that employers should instruct those workers who are infected or potentially infected to stay home and who develop symptoms during their work shift to immediately isolate. Where possible, the guidance encourages employers to permit their workers to telework and develop absence policies that are non-punitive.
Implementing Protections From Retaliation for Workers Who Voice Concerns About COVID-19-Related Hazards
The guidance reiterates that Section 11(c) of the OSH Act prohibits discharging or discriminating against an employee for engaging in protected activity. According to the guidance, protected activity would include a worker who raises a reasonable concern about COVID-19 infection control and provides and wears their own PPE. Employers should notify workers of their rights to a safe and healthy working environment and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected activity. Employers should also ensure that workers know whom to contact with questions or concerns about workplace safety and health and, to reduce the potential for retaliation, consider implementing a hotline or other method for workers to voice their concerns anonymously.
In addition to identifying the essential elements of a COVID-19 prevention program, the guidance also contains a few new recommendations from OSHA, including the following:
Finally, the new guidance also provides additional details on what OSHA considers to be some of the key measures for limiting the spread of COVID-19 in the workplace. These measures generally include:
As expected, the new guidance suggests that the Department of Labor under the Biden administration will take a more active role in attempting to regulate workplace safety during the COVID-19 pandemic. While the guidance is not a standard or regulation and does not create any new legal obligations for employers, employers should analyze the recommendations and make an effort to implement all measures that are appropriate and feasible for their workplaces. The new guidance, which OSHA may update periodically over the next several weeks, is likely to serve as the precursor for any Emergency Temporary Standards (ETS) that OSHA deems necessary, as directed by the January 21 EO. If any ETS are necessary, they must be issued by March 15, 2021. Moreover, on a briefing call with stakeholders shortly after the guidance was published, OSHA also confirmed that it is in the process of working with states that have issued COVID-19 standards (i.e., California, Michigan, Oregon, and Virginia) as it analyzes the need for and potential parameters of a federal ETS. As such, even if employers do not operate in states with existing COVID-19 standards, employers should review those states’ standards and consider whether the requirements or recommendations therein could be implemented for their business.
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