New OSHA guidance provides roadmap for COVID-19 safety measures
On January 29, the Occupational Safety and Health Administration (OSHA) issued new COVID-19 guidance for employers in response to President Biden’s Executive Order directing OSHA and the Mine Health and Safety Administration (MSHA) to revise COVID-19 workplace safety recommendations. Entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, the guidance outlines a recommended course of action for employers to further combat the spread of COVID-19. For example, OSHA recommended that employers do the following:
- Provide cloth face coverings or surgical masks to employees. OSHA reemphasized however, that “wearing a face covering is complementary to and not a replacement for physical distancing.”
- Provide paid sick leave consistent with the Families First Coronavirus Response Act (FFCRA) through March 31, 2021. Although the FFCRA’s mandates are no longer mandatory, OSHA emphasized that employers who provide leave for employees who, for example, are seeking a diagnosis for COVID-19 or otherwise subject to an isolation order, will receive 100% reimbursement through tax credits.
- Provide a COVID-19 vaccine at no cost to employees. Alternatively, OSHA suggested providing a vaccination series to employees that provide “information and training on the benefits and safety of vaccinations.”
- Record and Report COVID-19 Infections and Deaths. Employers should record any known work-related cases of COVID-19 illness on a Form 300 if the case is a confirmed case of COVID-19; the case is work-related (as defined by 29 CFR 1904.5); and the case involves one or more relevant recording criteria such as seeking medical treatment and/or days away from work.
- Implement safety precautions that do not differentiate between vaccinated and non-vaccinated employees. For example, employers should still require vaccinated employees to wear face coverings and practice social distancing as there is no evidence, at this time, that COVID-19 vaccines prevent transmission of the virus.
- Implement COVID-19 Prevention Programs. OSHA recommended engaging employees and/or union representatives in creating the programs, which should include:
- conducting hazard assessments
- identifying a combination of measures that limit the spread of COVID-19 in the workplace
- adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace
- implementing protections from retaliation for workers who raise COVID-19 related concerns
- assigning a workplace coordinator responsible for all COVID-19 issues
Additionally, OSHA recommended specific cleaning and disinfecting actions that employers should take after a person suspected or confirmed to have COVID-19 has been in or on their premises, such as: 1) closing areas potentially used by the persons; 2) opening doors and windows to the outside to increase ventilation; 3) waiting as long as practical to perform cleaning/disinfecting services (ideally, 24 hours); 4) cleaning and disinfecting specific work stations, offices, and communal areas; 5) providing cleaning workers with disposable gloves or PPE; and 6) following OSHA standards regarding hazard communication and PPE appropriate for exposure to cleaning chemicals.
At this point, the new guidance is not mandatory and does not carry the same weight as an OSHA standard. However, it sheds light on the Emergency Temporary Standard that the Biden Administration has asked OSHA to consider and implement by March 15, 2021. The guidance is also predictive of OSHA’s focus in enforcement actions on the horizon, which are expected to rise under the Biden Administration.
The new guidance essentially provides employers with a roadmap for establishing compliant practices. As a result, employers should take steps now to ensure that their safety practices are in line with this and other OSHA guidance.
As always, the McDonald Hopkins Labor and Employment Response Team will continue to monitor developments and provide updates on further employment law issues as they arise related to COVID-19.