Biden OSHA Revises “Protecting Workers Guidance” on Mitigating and Preventing the Spread of COVID-19

Seyfarth Synopsis: Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure. On January 29, 2021, OSHA issuedProtecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

According to OSHA’s press release, the agency is putting forth “stronger worker safety guidance to help employers and workers implement a coronavirus protection program and better identify risks which could lead to exposure and contraction.” The updated guidance and recommendations highlight steps employers should take to ensure a safe and healthy workplace and outlines existing safety and health standards. Many employers have already implemented some, if not all, of these recommendations throughout the pandemic.

The newly-issued guidance focuses on a workplace COVID-19 prevention program, which OSHA opines “is the most effective way to mitigate the spread of COVID-19 at work.” OSHA lists 16 elements that effective plans should include:

  1. Assignment of a workplace coordinator;
  2. Identification of where and how workers might be exposed to COVID-19 at work;
  3. Identification of a combination of measure that will limit the spread of COVID-19 in the workplace, in line with the principles of the hierarchy of controls;
  4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices;
  5. Establishment of a system for communicating effectively with workers and in a language they understand;
  6. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand;
  7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine;
  8. Minimize the negative impact of quarantine and isolation on workers;
  9. Isolating workers who show symptoms at work;
  10. Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility;
  11. Providing guidance on screening and testing;
  12. Recording and reporting COVID-19 infections and deaths;
  13. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards;
  14. Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees;
  15. Not distinguishing between workers who are vaccinated and those who are not; and
  16. Other applicable OSHA standards.

Though OSHA does not currently have COVID-19 regulations, the OSH Act’s General Duty Clause requires employers to provide a workplace free from any recognized hazard. OSHA’s guidance is an indication of the means of abatement the agency believes are “feasible” to address COVID hazards.

Further, we expect that if OSHA determines a COVID-19 emergency temporary standard (ETS) is necessary and issues it by President Biden’s March 15, 2021 deadline, a number of these provisions will be part of the regulations. Consequently, employers should evaluate their compliance with these guidelines now to prepare for any forthcoming ETS.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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