On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety directing the Assistant Secretary of Labor for Occupational Safety and Health to issue science-based guidance for employers to assist in protecting workers from COVID-19. In response, OSHA issued updated guidance for employers on January 29, 2021. Notably, the recently updated guidance is “advisory in nature, informational in content, and intended to assist employers in providing a safe and healthful workplace.” It does not create new standards, regulations, or legal obligations. However, this same Executive Order also requires consideration of any emergency standards on Covid-19 and if deemed necessary, to issue them by March 15, 2021.
Much of OSHA’s recent COVID-19 guidance involves practices that have become commonplace over the past 10 months: maintaining social distance, wearing face coverings, practicing good hygiene, and disinfecting regularly. However, the new guidance also recommends additional practices to help maximize the effectiveness of procedures that are employers are likely already using. For example, the new guidance focuses on:
- Hazard assessments to pinpoint employees’ specific safety needs;
- Ensuring employee input into needed procedures, with an understanding that employees are often in the best place to point out hazards specific to their own working conditions;
- Ensuring safety procedures are communicated effectively—meaning that they are widely available in formats that employees can understand (i.e. American Sign Language, non-English spoken languages)
- Appointment of an individual “point-person” to be responsible for COVID-19 on the employer’s behalf; and
- Adoption of policies that reduce negative impacts on employees missing work due to COVID-19, and that reassure employees that they will not be retaliated against if they raise questions or concerns with workplace safety procedures.
The new guidance provides information on how COVID-19 is transmitted, with references to relevant CDC guidelines and recommendations. It also highlights 16 key roles of employers and workers in responding to COVID-19, including, for example:
- The employer should assign a “workplace coordinator” who will be responsible for COVID-19 issues on the employer’s behalf.
- The employer should conduct a hazard assessment to identify when and how workers could be exposed to COVID-19. Employee input in this assessment is recommended, as employees are often the parties most familiar with their own working conditions. The employer should implement supportive policies to protect employees who are at high risk for severe illness. This can include telework options, less-densely occupied work spaces, and reasonable accommodations for disabled employees.
- The employer should communicate workplace policies in languages and formats employees can understand, and it should encourage open communication regarding COVID-19 exposures and hazards.
- The employer should record and report work-related COVID-19 infections and deaths consistent with OSHA reporting requirements. The employer should also keep in mind that retaliation and discrimination are prohibited under Section 11(C) of the OSH Act and 29 CFR 1904.35(b).
- The employer should implement protections from retaliation and set up anonymous procedures for employees to voice concerns.
- The employer should make vaccination available at no cost to eligible employees.
- The employer should require vaccinated employees to follow the same precautions as non-vaccinated employees.
- The employer should be mindful of its pre-existing obligations and OSHA standards for protecting employees from infection, including obligations relating to:
The new guidance also provides additional details on practical measures for mitigating the spread of COVID-19:
- Hazard Elimination: Sending Infected (and Potentially Infected) Employees Home
- Physical Distancing in Communal Areas
- Implement flexible working hours and meeting options to limit the number of people in one space
- Limit access to communal areas, or limit occupancy in areas that need to be accessed.
- Implement social distancing between employees and customers.
- Shift stocking activities to off-peak hours.
- Minimize contacts with vulnerable individuals.
- Barriers Where Social Distancing Cannot be Maintained
- Block face-to-face pathways.
- Keep in mind that implementing barriers does not eliminate the need for distancing.
- Utilize Face Coverings
- Provide coverings to workers, unless a respirator is already required.
- Provide reasonable accommodations as necessary for disabilities.
- Require masks for non-employee visitors.
- Improve Ventilation
- Use simple measures, such as fans and open windows, where practicable.
- Ensure ventilation systems are operating properly; replace filters when needed.
- Disable demand-controlled ventilation and reduce or eliminate recirculation of less-clean air.
- Install the highest MERV filter compatible with the ventilation system.
- Utilize HEPA filters and UVGI where possible.
- Utilize PPE
- Provide necessary PPE at no cost to employees.
- Review OSHA-provided guidance on PPE.
- Provide the Supplies Necessary for Good Hygiene Practices
- Provide hygiene supplies at no cost to employees — these include tissues, no‑touch trash cans, soap and water, touchless alcohol-based hand sanitizer (60% ethanol or 70% isopropanol)
- Allow sufficient time to practice good hygiene before and after work and during breaks
- Use posters and visual aids to encourage hygiene.
- Perform Routine Cleaning and Disinfection
- Utilize OSHA’s Guidance for Cleaning and Disinfecting and EPA-Approved Disinfecting Products.
- Employers should routinely clean and disinfect tools and workspaces, discourage employees from sharing objects or spaces, provide disposable disinfecting wipes to employees at no cost, and advise employees of proper PPE to use with disinfecting chemicals (i.e. disposable gloves).
As previously noted, President Biden also directed the Assistant Secretary to, on or before March 15, 2021, issue any necessary emergency temporary standard (ETS). He further ordered the Assistant Secretary to launch a national program to focus OSHA efforts on violations that put the largest number of works at serious risk for contracting COVID-19, or that are contrary to anti-retaliation principles. If and when these standards and programs are implemented, Butler Snow will once again highlight the important points and direct you to any updated guidance.