OSHA Issues Revised COVID-19 Guidance: What it Means and What’s Next

Almost immediately after taking office, President Biden issued an Executive Order requiring OSHA to publish revised COVID-19 guidance for employers, among other things. This past Friday, OSHA published such revised guidance which can be found here.

The revised guidance contains many suggestions that employers are already familiar with from other sources including prior OSHA guidance, CDC recommendations, and various state executive orders although more comprehensive in certain areas. 

The guidance focuses on assisting employers with implementing a workplace COVID-19 prevention program which OSHA states “is the most effective way to mitigate the spread of COVID-19 at work.” OSHA continues by stating an effective program should include, among other things:

  • Assignment of a workplace coordinator;
  • Conducting a hazard assessment with employee involvement;
  • Identification of measures that will limit the spread of COVID-19 utilizing a hierarchy of controls;
  • Accommodation issues for workers at higher risk for severe illness;
  • Communication and training for employees in a language they understand;
  • Instructing employees who are infected or potentially infected to stay at home and isolate and quarantine while minimizing the negative impact of quarantine and isolation of employees;
  • Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 has been in the facility;
  • Improving ventilation systems;
  • Ensuring employees are protected from retaliation for reporting COVID-19 concerns and setting up anonymous complaint protocols;
  • Addressing other applicable OSHA standards such as PPE.

The revised guidance now also states that employers should provide all workers with face coverings (unless their work requires a respirator) and also states that other individuals at the workplace should be required to wear them unless 2 years old or under or such individuals are actively engaged in eating and drinking.

In addition, the revised guidance also states employers should make COVID-19 vaccines available at no cost to eligible employees and to provide information and training on the benefits and safety of vaccinations. It further reminds employers that they should not distinguish between workers who are vaccinated and those who are not complying with protective measures such as wearing face coverings or maintaining social distancing as there is no current evidence that vaccines prevent transmissions of the virus from person-to-person.

Although the revised guidance remains just that – guidance as opposed to having the force of law, it does foreshadow that COVID-19 emergency temporary standards are likely forthcoming and some of the issues such standards might address, e.g., mandating face coverings and making vaccines available to employees. Indeed, President Biden’s Executive Order also directed OSHA to consider whether such emergency temporary standards are necessary. Recently, Virginia became the first state to pass permanent COVID-19 workplace safety and health standards and it also seems likely that Virginia’s model could be relied on if OSHA determines such emergency temporary standards are necessary at the federal level. A copy of Virginia’s law can be accessed here.

If history is any indication, it seems likely that under the current administration OSHA will move from relying on voluntary compliance to stricter regulation and more aggressive enforcement, particularly with COVID-19. It would thus be prudent for employers to carefully review the revised guidance to ensure their prevention program meets OSHA expectations.

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