By Ruder Ware Alumni
February 1, 2021
The Occupational Safety and Health Administration (OSHA) has issued a new, “stronger” Guidance on identifying and preventing coronavirus exposure risks in the workplace. Although this is labeled a “Guidance” and OSHA says that it is advisory, employers are cautioned that they can be at risk for standard OSHA penalties under the General Duty Clause if reasonable efforts are not made to minimize COVID-19 risks in the workplace, including efforts consistent with recommendations in the Guidance. And, it is possible that the elements listed in this Guidance, or something similar, could be required in the near future.
The bulk of the Guidance deals with encouraging employers to implement COVID-19 prevention programs. On his second day in office, President Biden ordered OSHA to consider whether an emergency temporary standard on COVID-19 is necessary and, if so, to issue it by March 15, 2021. So, the distinct possibility exists that workplace prevention programs will be required if OSHA issues the emergency standard.
The new Guidance emphasizes that workers receiving the coronavirus vaccine “must” continue to follow safe practices, such as face coverings and social distancing. This is “because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person,” and more information is needed about vaccine protection before changing these recommendations.
The Guidance recommends that prevention programs contain 16 elements:
- Assign a workplace COVID-19 coordinator
- Identify how and where employees may be exposed
- Identify measures that will limit the spread of the virus, including providing face coverings to employees at no charge
- Consider protections for higher risk workers
- Establish an effective communication system
- Educate and train on policies and procedures
- Instruct infected employees to stay home
- Minimize negative impacts of quarantine and isolation on workers
- Isolate workers with symptoms at work
- Enhance cleaning and disinfection after infected people have been on the premises
- Provide guidance on screening and testing
- Record and report COVID-19 infections and deaths
- Protect employees from retaliation for reporting and complaining about COVID-19-related hazards
- Make the COVID-19 vaccine available to all eligible employees at no charge
- Don’t distinguish between vaccinated and non-vaccinated employees (recognizing that vaccinated employees must still follow safe practices)
- Follow applicable individual OSHA standards that remain in effect (e.g. standards relating to respiratory protection, bloodborne pathogens, sanitation, etc.).
While there is at this time no OSHA standard specific to COVID-19, the Guidance refers in several places to the General Duty Clause, which requires employers “to provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.” This very general statement of law can be, and has been, used by OSHA to cite employers for failing to maintain reasonable COVID-19 protection measures.
The new Guidance can be accessed via OSHA’s site..
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