On Jan. 21, President Biden issued an Executive Order directing the Occupational Safety & Health Administration (OSHA) to release updated steps for employers to consider regarding COVID-19 and workplace safety.
OSHA issued new COVID-19 guidance on Jan. 29. While many of the steps noted in the guidance may already be standard operating procedure as the pandemic enters its eleventh month, it nevertheless provides a good opportunity for businesses to take stock and review their COVID-19 protocols to ensure they are following the current best practices.
OSHA’s “Duty of Care”
First of all, it is important to reiterate that portions of the Act apply to most private employers, regardless of industry. For example, even if a company has employees who work in a cubicle all day, those workers are covered by OSHA.
While there is nothing in the Occupational Safety and Health Act (or any implementing regulations) that expressly apply to COVID-19, the Act’s General Duty Clause requires employers to provide their employees with a “workplace free from recognized hazards likely to cause death or serious harm.” As this relates to COVID-19, OSHA has issued citations to employers who fail to take steps to prevent the exposure of spread of the virus at work, for example, through failing to require social distancing or other infection control practices like masking.
New Guidance Provides Example Steps for Employers to Take
In the newly-issued guidance, OSHA has noted that the implementation of a “COVID-19 Prevention Program” is the most effective way to mitigate the spread of the virus at work. Although the guidance does not create any mandatory requirements which employers must follow, it does list several steps for employers to take as best practices to ensure that they are providing a safe workplace, including:
- Assigning a workplace coordinator to oversee COVID-19 issues;
- Conducting a hazard assessment to identify where and how workers might be exposed at work;
- Identify measures to take to limit the spread of COVID-19 in the workplace;
- Consider additional protections needed for workers at higher risk of severe illness;
- Establishing a system for communicating with employees regarding COVID-19 issues in the workplace;
- Educating workers regarding COVID-19 policies and procedures;
- Instructing workers who are infected or potentially infected to stay home;
- Minimizing the impact for quarantine and isolation on workers, for example, considering paid sick leave policies or remote work arrangements;
- Isolating workers who show symptoms at work;
- Performing deep cleans after persons suspected or confirmed to have COVID-19 were in the workplace;
- Providing guidance to employees on COVID-19 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, i.e. continuing to require vaccinated workers to continue following COVID-19 infection control measures, “such as wearing a face covering and remaining physically distant.”
The New Guidance Signals Increased COVID-19 Enforcement to Come
Again, while this guidance does not create any additional mandatory requirements to follow, it does provide some insight into how OSHA views the General Duty Clause with respect to preventing COVID-19 infection at work, including the recommendation that COVID-19 vaccination be available at no cost to all employees and that employers should consider providing paid sick leave. This is noteworthy in light of the aforementioned Executive Order’s directive that OSHA “launch a national program to focus OSHA enforcement efforts related to COVID-19,” indicating that increased scrutiny is on its way.
Finally, the guidance reminds us that it is currently unknown whether vaccinated individuals can still spread the disease, and therefore, infection control practices such as masking and social distancing must continue to be maintained for the foreseeable future for an employer to meet its duty to reduce the hazards associated with COVID-19, even as more employees begin (hopefully soon) to receive the vaccine.
For many employers, especially those in states that have mandated COVID-19 “preparedness plans” or “prevention programs,” implementing and maintaining a COVID-19 prevention plan has been the standard practice for months now. However, given the increased focus on COVID-19 safety by OSHA, employers are well advised to again take stock of their workplace to ensure that all reasonable steps are currently being taken to protect workers as the pandemic continues.
Customizable COVID-19 exposure control plans are available to all FCA contributing members. If you need a plan, or want a resource to help enhance your existing plan, request your company’s COVID-19 exposure control plan with FCA’s Safety Tools request form.