Q: What do employers need to know about the recently released Occupational Safety and Health Administration (OSHA) guidance for COVID-19 prevention programs in the workplace?
A: On January 21, President Biden signed an Executive Order on protecting worker health and safety. Pursuant to the order, on January 29, OSHA released new guidance titled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”
The guidance encourages employers to implement COVID-19 prevention programs in the workplace, explaining that “the most effective programs engage workers and their union or other representatives in the program’s development, and include the following key elements: conducting a hazard assessment; identifying a combination of measures that limit the spread of COVID-19 in the workplace; adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace; and implementing protections from retaliation for workers who raise COVID-19 related concerns.”
OSHA recommends that a COVID-19 prevention program engage workers in the development and implementation of the program, and include the following elements:
- Assign a workplace coordinator to address COVID-19 issues.
- Identify where and how workers might be exposed to COVID-19 at work through a hazard assessment.
- Determine measures that will limit the spread of COVID-19 in the workplace, including engineering controls, administrative policies, and additional personal protective equipment (PPE).
- Consider protections for workers at higher risk for severe illness through supportive policies and practices.
- “Where feasible, employers should consider reasonable modifications for workers identified as high-risk who can do some or all of their work at home (part or full-time), or in less densely-occupied, better-ventilated alternate facilities or offices.”
- Establish a system for communicating effectively with workers in a language they understand, including a system for employees to self-report COVID-19 symptoms or exposure.
- Educate and train workers on COVID-19 policies and procedures.
- Communications should include basic facts about COVID-19, workplace policies and procedures implemented to protected workers, and some means of tracking which workers have been informed and when.
- Instruct infected or potentially infected workers to stay home and isolate or quarantine.
- Minimize the negative impact of quarantine and isolation on workers through telework and flexible paid leave policies.
- Note: Although the requirement that employers provide paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (“FFCRA”) expired 31, 2020, the Consolidated Appropriations Act (“CAA”) of 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. Thus, employers that voluntarily provide paid leave will continue to receive full reimbursement from the federal government through tax credits and/or refunds through March 31, 2021.
- Isolate workers who show symptoms at work.
- Perform enhanced cleaning and disinfection after a suspected or confirmed case of COVID-19.
- This includes closing areas, opening doors and windows, cleaning and disinfecting, vacuuming, and providing cleaning workers with PPE.
- Provide guidance on screening and testing.
- Follow state or local guidance and priorities for screening and viral testing in workplaces.
- Record and report COVID-19 infections and deaths.
- “Employers are responsible for recording work-related cases of COVID-19 illness on their Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 CFR 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA . . . . Employers should also report outbreaks to health departments as required and support their contact tracing efforts.”
- Implement retaliation protections and set up an anonymous process for employees to voice concerns about COVID-19 hazards.
- Make a COVID-19 vaccine available at no cost to employees.
- Do not relax preventative measures for vaccinated employees.
Although the guidance states that it “creates no new legal obligations” for employers, it is considered to be a step toward promulgation of an emergency temporary standard on COVID-19. 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. In anticipation of implementing the emergency standard, employers should update their COVID-19 prevention programs, policies, and practices in light of the new guidance, which should be reviewed in its entirety.