Obermayer Rebmann Maxwell & Hippel LLP

While COVID-19 vaccine rollouts have been far more successful than initially planned, many states are reporting increases in positive cases, the spread of new variants, and a slowdown of sign-ups for vaccines. Amid economic and social pressure to “open up” and regain a sense of normalcy, employers are identifying the various necessary practical safeguards for returning employees to the workplace. Up until now, one key piece of guidance has been missing: a federal workplace safety standard specific to COVID-19. However, it appears that will soon be changing. This week, the U.S. Department of Labor (“DOL”) sent emergency rules calculated to protect workers from COVID-19 to the White House in a step toward final review for release to the public. The rule would impose new workplace safety requirements to prevent the spread of the virus.

The move comes after the DOL failed to meet the Biden Administration’s original deadline of March 15 for the new rules. The rules were delayed to allow the Occupational Safety and Health Administration (“OSHA”) to make updates based on receipt of the latest scientific research. Newly confirmed Secretary of Labor Marty Walsh requested additional time to account for the CDC analysis and guidance on the state of vaccinations and the emerging COVID-19 variants. The transmission of the rules to the White House on Monday comes as Democrats have been pushing for a status update on the rules, and prior to the House Committee hearing on the issue scheduled for April 30th.

It is anticipated that the rules will be published in roughly two weeks, that they will take effect immediately, and will remain in place for six months. The rules are expected to impose requirements on employers to supply employees with personal protective equipment, such as masks, to have a written plan to address and avert exposure to COVID-19 in the workplace, and other precautions to protect employee safety. Employers failing to adhere to these emergency protocols will face potential OSHA complaints, even if their states have relaxed COVID-19 restrictions, such as by lifting mask mandates. Employers should therefore expect stricter enforcement and thorough investigations of OSHA complaints related to COVID-19 under the Biden Administration.

Employers looking to return to the office on a part or full-time basis should already be implementing the safety precautions we have previously recommended in our articles:

If employers have been following the advice in these articles, they will likely be ahead of the game when the new emergency rules come into effect. Employers should be keeping an eye out for the release of these rules and tailoring workplace policies to conform as quickly as possible.  As always, where state and local rules are more stringent, employers need to comply with those standards.

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