On January 29, 2021, the Occupational Safety and Health Administration (OSHA) issued updated guidance aimed at helping employers implement COVID-19 Prevention Programs to better identify workplace risks that could lead to worker exposure (“Guidance”).1 The Guidance follows President Biden’s January 21, 2021 Executive Order directing OSHA to issue clear, science-based recommendations on how to keep workers safe from COVID-19, analysis of which can be found in WilmerHale’s prior client alert. This is the first time OSHA has revised its general workplace COVID-19 guidance since March 2020. For more background on the March 2020 guidance, see WilmerHale’s client alert here.
While the Guidance is only advisory in nature and not legally binding, it is intended to provide clarity and direction to help businesses comply with OSHA requirements and can be used as a benchmarking tool. Employers should take advantage of the additional detail provided in the Guidance and seize the opportunity to reassess their current policies and procedures to ensure compliance.
OSHA’s Recommended COVID-19 Prevention Program Measures
In this Guidance, OSHA continues to recommend that employers in non-healthcare settings implement COVID-19 Prevention Programs (previously called Infectious Disease Preparedness and Response Plans) in the workplace. The four key pillars of such programs are: (1) conducting a hazard assessment to determine where and how workers might be exposed to COVID-19 at work; (2) identifying a combination of measures that limit the spread of COVID-19 in the workplace; (3) adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace; and (4) implementing protections from retaliation for workers who raise COVID-19-related concerns. Those recommendations largely expand on OSHA’s March 2020 guidance but notably feature a new emphasis on anti-retaliation. The agency’s existing direction on classifying worker exposure in different types of workplaces and COVID-19 industry-specific guidance continue to provide the background for the more detailed workplace best practices.
The Guidance expands on the four key pillars of workplace COVID-19 Prevention Programs by identifying 15 elements for employers to consider within the topics listed below. As employers will note, many of these workplace safety protocols are already strongly recommended or required by state, county and/or local public health orders across the country. Thus, in most instances, the Guidance does not set forth entirely new safety protocols but rather clarifies and strengthens existing recommendations based on recent science and best practices.
- COVID-19 Workplace Coordinator. OSHA recommends that employers assign a workplace coordinator responsible for handling COVID-19 concerns. The March 2020 guidance did not make this recommendation.
- Spread Control. The Guidance identifies measures that employers should consider for controlling the spread of COVID-19 in the workplace, such as installing barriers, improving ventilation, using personal protective equipment (PPE), and providing supplies for good hygiene practices. It advises employers to instruct workers who are infected or potentially infected to stay home and isolate or quarantine, isolate workers who show symptoms at work, and perform enhanced cleaning and disinfection after individuals with suspected or confirmed COVID-19 have been in the facility. The Guidance provides additional detailed recommendations for implementing each of these key measures. Although the March 2020 guidance discussed many of the same concepts and priorities, the new Guidance provides valuable specificity and better aligns OSHA with Centers for Disease Control and Prevention (CDC) guidelines and many state, local, and county public health orders. For instance, consistent with CDC guidelines, OSHA now recommends that workers who have or may have COVID-19 can return after (1) at least 10 days since symptoms first appeared; (2) at least 24 hours with no fever without fever-reducing medication; and (3) other symptoms of COVID-19 are improving. Also, for the first time, the Guidance recommends that employers provide all workers with face coverings. Employers should review the detailed list provided in the Guidance as they reassess their workplace safety measures and Prevention Programs.
- Employee Engagement and Communication. OSHA’s recommendations emphasize the need for employers to communicate clearly and effectively with employees about COVID-19 measures, including by providing information in accessible formats and in a language that workers understand. Employers are also encouraged to develop policies that support workers at higher risk for severe illness and minimize the negative impact of quarantine and isolation on workers—for instance, by allowing telework and implementing paid leave policies. Such policies are already mandatory in some jurisdictions; for example, California requires telework for office workers where possible. Finally, OSHA recommends establishing an anonymous process for workers to identify COVID-19-related concerns without fear of retaliation. These elements largely clarify and elaborate on the recommendations in the March 2020 guidance, with the addition of OSHA’s new focus on anti-retaliation.
- Recording and Reporting. Existing OSHA regulations require employers to record and report workplace injuries. The Guidance reminds employers that they are responsible for recording work-related cases of COVID-19 on their Form 300 logs when certain conditions are met. This signals that OSHA will place renewed emphasis on reporting and record-keeping requirements that were relaxed during the Trump Administration.
- Screening, Testing, and Vaccination. OSHA recommends that employers consider establishing workplace screening and testing programs and making COVID-19 vaccines available to all eligible employees at no cost. The Guidance does not state a position on whether employers should require employees to undergo testing or vaccination. The agency cautions employers to continue requiring spread-controlling measures regardless of whether workers are vaccinated until more is known about the protection that vaccines provide. In other words, employers should continue to implement COVID-19 workplace safety protocols, even as employees are being vaccinated. These provisions are new as compared to the March 2020 guidance.
The Guidance also reminds employers that—while OSHA has not promulgated a standard specific to COVID-19 to date—all OSHA standards that apply to protecting workers from infection remain in place and continue to be enforceable. This is a notable change from OSHA’s prior relaxed stance on COVID-19-related enforcement, as summarized in WilmerHale’s earlier client alert, and signals the potential for increased enforcement. Employers should take particular note of existing standards regarding PPE, respiratory protection, and sanitation, as well as OSHA’s requirements for employee access to medical and exposure records. Additionally, the Guidance reminds employers that under OSHA’s “general duty clause” they are required to furnish “employment and a place of employment [that are] free from recognized hazards that are causing or are likely to cause death or serious physical harm.” COVID-19-related inspections to date have most frequently cited violations of the respiratory protection, recording and reporting, and PPE standards, along with the general duty clause.2 We expect that pattern will continue, likely with increased frequency if enforcement rises as predicted.
What to Expect Next
The Guidance is a useful tool for employers as they strive to identify and address hazards in the workplace. Employers can expect OSHA to play an increasingly visible role in the coming months, as the Biden Administration has signaled that it expects the agency to do more to protect worker health and safety. For example, OSHA is currently considering whether to issue emergency temporary standards; if it decides to do so, it will release them by March 15, 2021. If the agency decides that standards are appropriate, it will likely incorporate elements of the guidance it has issued to date, and may also look to state, county and/or local public health orders and standards—like those issued in California and Virginia—as models. Unlike the Guidance, which is advisory in nature, any new emergency temporary standards issued by OSHA would be legally binding and enforceable. Even if it ultimately decides against adopting new standards, OSHA has the option to increase enforcement under its existing standards. Accordingly, as OSHA’s overall involvement in the pandemic response intensifies, employers should be aware that enforcement likely will similarly increase in the coming months.