By Jeff Jones
Special to the UCBJ
While the world celebrates the ongoing vaccinations against COVID-19, it is clear the pandemic is far from eradicated and related adjustments in most aspects of life will continue for the foreseeable future. Evidence of this continuing trend in the workplace is clear in the recent guidance from the Occupational Safety and Health Administration (OSHA).
On Jan. 29, 2021, OSHA posted updated guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (the “Guidance”), which was issued pursuant to one of President Joe Biden’s Executive Orders (EO). The Guidance can be found at https://www.osha.gov/coronavirus/safework. The stated purpose of the Guidance is to advise employers and workers regarding the risks of being exposed to and contracting COVID in workplace settings and “to determine any appropriate control measures” for the workplace. Although the Guidance is advisory and informational, it does provide insight into OSHA’s expectations relative to addressing COVID protections in the workplace.
As noted in the Guidance, under the Occupational Safety and Health Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards that can cause death or serious physical harm. Employers are encouraged to implement a “COVID-19 Prevention Program” to mitigate the spread of COVID-19 in the workplace and to engage workers (and their representatives) in the program’s development and implementation.
The Prevention Program should include assignment of a workplace coordinator responsible for implementation on the employer’s behalf. OSHA also recommends that employers do a hazard assessment to identify potential hazards specifically related to COVID-19 and implement various measures directed at eliminating such hazards such as physical distance in all communal work, installing barriers where physical distancing is not possible, distributing and requiring the use of face coverings (and other applicable PPE), cleaning and disinfecting, good hygiene practices, and improving overall ventilation in the workplace. Although they are too extensive to list here, the Guidance provides detailed recommendations to accomplish these well-known measures.
Employers are encouraged to require employees who are infected or potentially infected to stay home, isolate, or quarantine, and to allow telework or work in an isolated area. The Guidance further suggests continuation of the benefits under the Families First Coronavirus Response Act (FFCRA) through March 31, 2021, which would also help to minimize the negative impact of employees missing work due to COVID.
One note of concern is OSHA’s encouragement that all workers who “appeared to have symptoms upon arrival at work or who develop symptoms during their work shift” should immediately be separated from other workers, customers, and visitors, and be sent home and encouraged to seek medical attention. Employers need to be consistent in how they handle such situations, so good supervisory training is all the more important, as well as ensuring the HR department has input (if not final decision) in who gets sent home (which could be viewed as an adverse action).
The Guidance also encourages the reporting and recording of COVID-19 infections and deaths when they are work-related (as defined by 29 CFR 1904.5) and when the case involves one or more of the criteria set forth in 29 CFR 1904.7.
Perhaps recognizing that the vaccine is not a panacea to the pandemic, the Guidance also recommends that employers not make a practice of distinguishing between workers who have been vaccinated and those who have not, particularly with respect to wearing face coverings and remaining physically distant.
The updated Guidance is only partially responsive to President Biden’s EO because that EO also directed OSHA to consider developing emergency temporary standards (ETS) on COVID-19, “including with respect to masks in the workplace” – and if OSHA determines ETS are necessary, they are to issue them by March 15, 2021. If OSHA develops ETS, they would (unlike the Guidance) have the same status as formal regulations, would be enforceable, and would take effect immediately. How long they would last is uncertain at this point.
The Presidential EO also directs OSHA to focus enforcement efforts on violations that implicate the risk of COVID-19 in the workplace or which indicate violation of the anti-retaliation principles.
In light of OSHA’s activity and updated Guidance, and the increased focus from the new administration on workplace safety, employers are advised to consult with counsel to ensure all OSHA-related programs are up to date, and that employee safety training is documented and effective. The best way to prevent an OSHA issue is to prevent workplace accidents and address potential hazards before they become problems.