February 10, 2021

Only eight days after President Joe Biden tasked the Occupational Safety and Health Administration (OSHA) with issuing revised guidance to employers on workplace safety during the COVID-19 pandemic, OSHA complied. OSHA's "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace" was posted January 29, 2021. This is the first time OSHA has published comprehensive recommendations on specific workplace COVID-19 prevention policies.

OSHA makes clear that its new guidance "is not a standard or regulation," "creates no new legal obligations," is "advisory in nature," and is merely "intended to assist employers in recognizing and abating hazards …" However, because OSHA's General Duty Clause requires employers to maintain a workplace "free from recognized hazards that are causing or likely to cause death or serious physical harm," carefully reviewing and following the guidance to the greatest extent possible is a good way to demonstrate compliance with the General Duty Clause. 

Some important, high-level elements of this new guidance include:

Implementing a COVID-19 Prevention Program
OSHA encourages employers to develop a COVID-19 prevention program that includes 15 key elements, including: 

  • Conducting a thorough hazard assessment to identify potential risks in the workplace; 
  • Identifying and implementing measures designed to limit the spread of COVID-19 in the workplace (discussed in our prior article), such as physical distancing in communal work areas, installing barriers where physical distancing cannot be maintained, providing employees with face coverings, and performing routine cleaning and disinfection; 
  • Considering modified policies for employees at higher risk of severe illness;
  • Directing workers who have or potentially have COVID-19 to stay home and quarantine; and
  • Recording and reporting COVID-19 cases if required (as detailed in our prior article).

The good news is that many employers already have these types of policies in place. A quick run-through of OSHA's checklist, and a fresh set of eyes on your current policies, can be an effective way to ensure your written policies are up-to-date and protect both your business and your employees. 

Vaccines
OSHA does not mandate employee vaccinations. However, it does encourage employers to make vaccines available at no cost to eligible employees or, at the very least, to provide information and training on the benefits and safety of vaccinations. (For more information on employees and vaccines, take a look at our recent article.) 

And, since there is not yet evidence that vaccines prevent COVID-19 transmission, the guidance also discourages employers from applying different safety standards to vaccinated and unvaccinated employees. For example, even employees who have been vaccinated should be required to continue wearing face coverings and remain physically distant. 

Employee Feedback and Participation

  • OSHA considers employee participation in developing effective COVID-19 prevention measures to be key. Employers are encouraged to involve employees in assessing safety hazards and developing a prevention program. 
  • Employers should implement effective employee training and communication standards (including making sure employees are provided information in a format and language they understand).
  • While employers are already prohibited from firing or discriminating against employees for raising concerns about workplace safety, employers are also encouraged to emphasize to workers that they won't be subject to retaliation for raising such concerns, and to consider setting up an anonymous process for workers to voice concerns about COVID-19 related hazards. 

So, What Does This Mean for Employers?
This article summarizes some key elements of OSHA's new guidance. We recommend that you review the guidance in its entirety and consider whether your existing policies should be updated in light of these new recommendations. Keep in mind that these guidelines go hand-in-hand with existing federal, state, and local requirements – they do not replace them.

The President's executive order also gives OSHA until March 15 to issue emergency standards, which we anticipate will be published in the coming weeks. Getting a jump-start on this guidance will set you up for a smoother transition when OSHA issues those emergency standards. 

If you haven't yet developed written COVID-19 safety policies, now is the time to do so. And, as always, our Labor & Employment group is here to assist.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.