Choose Site

LawFlash

OSHA Issues Guidance on Mitigating and Preventing COVID-19 Spread in the Workplace

February 02, 2021

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.

COVID-19 Prevention Program

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.

Noteworthy New Recommendations

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:

  • Face coverings. Explicit recognition that the use of a face covering may protect the wearer as well as others.
  • Vaccinations. Employers should make a COVID-19 vaccine available at no cost to all eligible employees, and provide information and training to employees on the benefits and safety and vaccinations. In addition, OSHA recommends that employers should not distinguish between workers who are vaccinated and those who are not and that any vaccinated workers must continue to follow protective measures, such as wearing a face covering and remaining physically distant.
  • COVID-19 Testing. Workers who have recovered after testing positive for COVID-19 should be tested only if they develop new symptoms for three months following their positive test, as they may continue to test positive for three months or more without being contagious to others. If the worker develops new symptoms, they should discuss getting tested again with their healthcare provider, especially if they have been in close contact with another person who has tested positive for COVID-19 in the last 14 days.
  • Anonymous Employee Reporting – OSHA recommends that employers consider using a hotline or other method for workers to voice concerns anonymously.

Additional Guidance on Limiting the Spread of COVID-19 in the Workplace

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:

  • Providing supplies necessary for and encouraging good hygiene practices. Employers should provide tissues and no-touch trash cans; encourage workers to frequently wash their hands with soap and water (for at least 20 seconds) or use alcohol-based hand sanitizer that is at least 60% ethanol or 70% isopropanol; place posters encouraging good hand hygiene and physical distancing in and around the workplace, including in languages other than English, as needed; and provide supplies necessary for good hygiene at no cost to the workers.
  • Performing routine cleaning and disinfection, following the CDC’s Guidance for Cleaning and Disinfecting. Employers should provide disposable disinfecting wipes; not share objects between workers, or ensure appropriate cleaning and disinfecting between uses; advise workers to always wear gloves appropriate for the chemicals being used when cleaning or disinfecting; store and use disinfectants in a responsible and appropriate manner; and not mix bleach or other cleaning and disinfection products together.
  • Providing all workers with face coverings made of at least two layers of a tightly woven breathable fabric worn snugly over the nose, mouth, and chin at no cost to the worker. Employers must discuss the possibility of a reasonable accommodation for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability, and in workplaces with employees who have hearing deficits, employers should consider acquiring masks with clear coverings over the mouth. Employers should also require any other individuals (e.g., visitors, customers, non-employees) to wear a face covering unless they are under the age of 2 or are actively consuming food or beverages on site.
  • Providing additional PPE as necessary to protect workers fully. Employers should determine what PPE is necessary to protect workers and provide all PPE to the workers at no cost; provide PPE in accordance with relevant OSHA standards and other industry-specific guidance; if necessary, provide and use respirators in compliance with OSHA standards; and support voluntary use of PPE as a “reasonable accommodation” under the Americans with Disabilities Act or in response to concerns for personal safety.
  • Isolating workers who are infected or potentially infected so they cannot infect other workers. Most employers will follow a symptom-based strategy for identifying and sending home workers, although there are certain circumstances where employers may consider a COVID-19 test-based strategy. Employers should require workers who have or likely have COVID-19 to remain out of the workplace in isolation until they meet CDC guidelines for exiting isolation; require workers who have been exposed to COVID-19 to remain out of the workplace in quarantine; and comply with local public health authority requirements, which determine and establish the quarantine options for their jurisdictions. Employers may consider permitting critical infrastructure workers to continue to work in limited instances when it is necessary to preserve the function of critical infrastructure workplaces.
  • Implementing physical distancing in all communal work areas. Employers should limit the number of people in one place at any given time, such as by implementing telework and flexible work hours, delivering services remotely, and implementing flexible meeting and travel options; alter work spaces to facilitate increased physical space between workers and with customers to at least six feet; close or limit access to common areas; shift primary stocking activities to off-peak or after hours to reduce contact with customers; offer vulnerable workers duties that minimize their contact with customers and other workers; and when work tasks do not allow for adequate physical distancing, check for additional industry-specific guidance.
  • Installing barriers where physical distancing of at least six feet cannot be maintained to separate workers at fixed workstations from other people. Transparent shields or other solid barriers should be used to block face-to-face pathways between individuals; necessary openings to permit transfer of items should be as small as possible; and physical distancing should still be maintained wherever possible.
  • Improving ventilation to prevent the spread of COVID-19 in buildings. Employers should consider the following strategies based on ASHRAE Guidance for Building Operations During the COVID-19 Pandemic: ensure ventilation systems operate properly; increase ventilation rates; increase fresh outdoor air by opening windows and doors and use fans; disable demand-controlled ventilation; ensure restroom exhaust fans are functional; maintain local exhaust ventilation in kitchens and cooking areas; reduce or eliminate recirculation; keep system running longer hours; improve central air filtration to the MERV-13 or the highest compatible with the filter rack; check filters to ensure they are within service life and appropriately installed; and if ventilation cannot be increased, reduce occupancy level in the building.

Employer Outlook

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.

NAVIGATING THE NEXT.

Sharing insights and resources that help our clients prepare for and address evolving issues is a hallmark of Morgan Lewis. To that end, we maintain a resource center with access to tools and perspectives on timely topics driven by current events such as the global public health crisis, economic uncertainty, and geopolitical dynamics. Find resources on how to cope with the globe’s ever-changing business, social, and political landscape at Navigating the NEXT. and Coronavirus COVID-19 to stay up to date on developments as they unfold. Subscribe now if you would like to receive a digest of new updates to these resources.

CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Los Angeles 
Jason Mills

Philadelphia 
Brandon Brigham

Washington, DC 
Jonathan Snare