The federal Occupational Safety and Health Administration (OSHA) recently released a list of sixteen new recommendations for employers in light of the ongoing COVID-19 pandemic at the request of the newly-installed Biden Administration.
On his second day in office, January 21, 2021, President Joe Biden signed Executive Order 13999 Protecting Worker Health and Safety aimed at involving the federal government in the effort to safely reopen workplaces and manage the spread of the coronavirus. Among other things, the new administration (i) directed the Department of Labor and OSHA to issue guidance to employers on workplace safety, (ii) consider issuing mandatory “emergency temporary standards” on COVID-19 workplace safety, and (iii) review its enforcement policies and strategies with regard to health and safety violations.
OSHA acted quickly and quietly released its list of COVID-19 workplace safety recommendations without much fanfare on January 29, 2021. OSHA also specified, in accordance with the executive order requesting their implementation, that the “recommendations are advisory in nature, informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm.” For many employers in states with robust COVID-19 mitigation orders or other rules, these recommendations will be similar to those mitigation strategies issued at the state level.
- Appoint a COVID-19 coordinator for the workplace to coordinate and implement the employer’s COVID-19 policies.
- Identify where & how employees might be exposed to COVID-19 at work through a hazard assessment.
- Adopt policies designed to reduce COVID-19 transmission.
- Consider special protections for workers at higher risk for severe illness.
- Establish a communication system to encourage employees to report COVID-19 symptoms and possible transmissions.
- Educate employees on workplace COVID-19 policies.
- Instruct workers with COVID-19 or possible COVID-19 to stay home.
- Promote teleworking among employees.
- Isolate workers who show symptoms at work.
- Enhanced cleaning protocols.
- Follow state or local guidance related to COVID-19 screening and viral testing.
- Report COVID-19 cases and deaths contracted at the workplace.
- Set up anonymous processes for employees to report health hazards.
- Make COVID-19 vaccinations available at no cost to employees.
- Do not distinguish between vaccinated workers and unvaccinated workers (“Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person”).
- Follow other OSHA standards related to personal protective equipment (PPE) and other standards.
These recommendations represent best practices and mirror current guidance provided by the federal Centers for Disease Control and Prevention (CDC). However, many legal observers anticipate that OSHA will release a second phase of standards, known as “emergency temporary standards” within the next several weeks, prior to March 15, 2021, which will be binding on most employers.
These potential emergency temporary standards can be issued after the Secretary of Labor makes a determination that (A) employees are exposed to a “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) such emergency standard is necessary to protect employees from such danger.” Such emergency temporary standards would carry the force of law, and employers would be required to comply with them. It is unlikely that the Biden administration would preempt or supersede stricter local COVID-19 mitigation rules, so employers would need to comply with local, state, and now federal regulations on COVID-19 business operations.
Finally, President Biden ordered the Department of Labor and OSHA to review their enforcement practices, with an eye toward ramping up federal enforcement of COVID-19 health and safety violations. With federal involvement at the enforcement level, employers may face new risks for failing to comply with important public health directives.
Employers should prepare for future federal guidance and mandatory requirements from OSHA, the CDC or the Department of Labor. Key steps could include reviewing compliance with existing COVID-19 orders and identifying a key person to run point on COVID-19 regulatory issues. The full OSHA recommendations are available here.
If you have any questions about these announcements, or if you need assistance in navigating any COVID-19-related issues, please contact your regular Saul Ewing, LLP attorney.