On January 29, 2021, and in accordance with President Biden’s Executive Order on Protecting Worker Health and Safety, the Occupational Safety and Health Administration (OSHA) issued guidance focused on mitigating and preventing the spread of COVID-19 in workplaces outside of the healthcare industry. The guidance does not expressly create any new legal obligations for employers, but instead outlines OSHA’s perspective as to best practices. The guidance also reminds employers that they already have enforceable obligations under existing federal regulations, including the obligation to provide a workplace free from recognized hazards such as COVID-19.
OSHA’s guidance encourages employers to implement a COVID-19 prevention program as the most effective way to mitigate the spread of COVID-19. The guidance emphasizes employee involvement, communication and training as best practices.
Per OSHA, important components of a COVID-19 prevention program include:
1. Assigning a workplace coordinator responsible for COVID-19 plan implementation.
2. Conducting a hazard assessment to identify potential COVID-19 workplace hazards.
3. Implementing measures to limit the spread of COVID-19, including requiring employees who are sick, have symptoms or who are exposed to stay or go home and to quarantine or isolate as recommended by the CDC; implementing physical distancing; using face coverings and other personal protective equipment; improving ventilation; encouraging good hygiene; and performing routine cleaning and disinfection regularly, with enhanced cleaning and disinfection after a suspected or confirmed COVID-19 case.
4. Protecting workers at higher risk for severe illness, including by providing reasonable accommodations to individuals with disabilities, as may be required by the Americans with Disabilities Act.
5. Encouraging employees to report COVID-19 symptoms, exposure and COVID-19 hazards in the workplace.
6. Educating and training workers, contractors and facility visitors on COVID-19 policies and infection mitigation procedures.
7. Minimizing the impact of required quarantines on employees through telework and/or use of available paid leave.
8. Providing screening and testing in the workplace.
9. Following OSHA’s recording and reporting regulations as applied to COVID-19 illnesses and injuries. COVID-19 infections can be OSHA-log recordable under existing regulations as explained in OSHA’s Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), and COVID-19 fatalities and hospitalizations may need to be rapidly reported to OSHA directly, as explained at OSHA Reporting FAQs.
10. Protecting employees from retaliation when they assert rights under OSHA to advocate for their health and safety, consistent with Section 11(c) of the OSH Act.
11. Making COVID-19 vaccines available at no cost to employees and providing information and training on the benefits of vaccines.
12. Ensuring that workers continue to wear face coverings, physically distance and take other appropriate precautions even after vaccination.
13. Continuing to follow other OSHA requirements, including standards requiring PPE, sanitation and employee access to medical and exposure records.
OSHA’s guidance may foreshadow future mandatory standards requiring employers to implement a COVID-19 prevention program. President Biden has ordered OSHA to consider whether enforceable federal standards are necessary and, if so, to issue those standards by March 15, 2021. For now, however, all employers are encouraged to evaluate whether their current COVID-19 policies and plans are consistent with OSHA’s guidance, and update as appropriate, including to comply with state and local laws or guidance regarding COVID-19 mitigation measures.