On his first full day in office, President Biden stroked an Executive Order directing the Secretary of Labor, who oversees the Occupational Safety and Health Administration (“OSHA”), to issue revised COVID-19 workplace-safety guidelines by early February and, if necessary, to issue “emergency temporary standards on COVID-19” by March 15. This past Friday, OSHA took its first step toward compliance with that Order by publishing “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (the “Guidance”).
After briefly describing the COVID-19 virus itself, the Guidance addresses “What Workers Need To Know About COVID-19 Protections In The Workplace.” This portion of the Guidance advises that “[t]he best way to protect yourself is to stay” at least 6 feet “away from other people so that you are not breathing in particles produced by an infected person,” and highlights both the importance of good personal hygiene (such as frequent hand-washing and mouth-and-nose covering when coughing or sneezing) and the purposes and benefits of face coverings. It also reports that many employers have implemented protection programs that include measures ranging from “telework to flexible schedules to personal protective equipment (PPE) and face coverings” and suggests that workers ask their employers about their plans for workplace protection against COVID-19.
The core of the Guidance, however, is a section entitled “The Role of Employers and Workers in Responding to COVID-19.” The Guidance here stresses that “[t]he most effective COVID-19 prevention programs engage workers and their representatives in the program’s development and implementation at every step.” The elements of such programs, the Guidance says, include the following:
- A workplace coordinator who addresses COVID-19 issues for the employer.
- Identification of where and how workers may be exposed to COVID-19 in the workplace.
- Identification of a combination of measures (such as hazard elimination, engineering controls, workplace administrative policies, and personal protective equipment (PPE)) that will limit the workplace spread of COVID-19.
- Consideration of work modifications (such as telework or, alternatively, sparsely-populated or better-ventilated work space) that may protect more vulnerable workers (e.g., older employees or employees with serious underlying medical conditions).
- Establishment of a system for communicating effectively with workers in a language they understand.
- Education and training of workers on COVID-19 policies and procedures using accessible formats.
- A means to ensure that actually-or-potentially infected workers stay home and isolate or quarantine.
- A means to minimize the negative impact of quarantine and isolation on workers (by, for example allowing such workers (when possible) to telework, work in an isolated area, or use paid leave).
- Prompt isolation (from other workers, customers, and visitors) of employees who show COVID-19 symptoms in the workplace.
- Enhanced cleaning and disinfection of the workplace after any actually-or-potentially infected person has been present there.
- Guidance on virus screening and testing, which may include arranging for workplace testing through an occupational health provider or a local or state health department.
- Required recordation and reporting of COVID-19 infections and deaths.
- A procedure by which workers can anonymously voice concerns about COVID-19 hazards and corresponding anti-retaliation protections.
- Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees and training workers on the benefits and safety of vaccinations.
- A requirement that even vaccinated workers continue to follow protective measures (because it is not proven that COVID-19 vaccines prevent virus transmission).
- Compliance with pre-pandemic OSHA standards designed to protect workers from infection.
The final section of the Guidance provides “Additional Details on Key Measures for Limiting the Spread.” It identifies and thoroughly discusses those measures, which include separating (and sending home) symptomatic employees; implementing physical distancing in communal areas; installing barriers where physical distancing cannot be maintained; use of face coverings; improving ventilation; use of PPE when necessary; providing good-hygiene supplies; and routine cleaning and disinfection.
While the Guidance mostly covers safety measures that have become engrained in workplace practice since last March, employers are nonetheless well-advised to acquaint themselves with it. It will undoubtedly serve as the foundation for any binding temporary regulations that OSHA may issue by the March 15 deadline set by President Biden. Further, several of the suggested measures, such as no-cost vaccination for eligible employees, have not been widely adopted and merit employers’ heightened attention. Finally, the Guidance discusses work modifications, such as telework and flexible scheduling, that may be relevant to employers’ obligations under the Americans with Disability Act and state disability laws.
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