In an executive order on January 21, 2021, President Biden instructed the Occupational Health and Safety Administration (OSHA) to issue revised guidance to employers on workplace health safety during the COVID-19 pandemic within two-weeks. Eight days later, on January 29, 2021, OSHA delivered stronger guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”. The revised guidance describes key measures for limiting the spread of COVID-19 including adopting a COVID-19 prevention program, ensuring infected or potentially infected people are not in the workplace, implementing and following physical distancing protocols, and using surgical masks or cloth face coverings, to name a few. President Biden has also ordered OSHA to consider whether “any emergency temporary standards on COVID-19” are necessary and issue such standards by March 15. Although OSHA makes it clear throughout the revised guidance that the guidance “is not a standard or regulation” and “creates no new legal obligations”, it is reasonable for organizations to assume that specific aspects of the guidance may be included in any emergency temporary standards that OSHA issues on March 15. As a result, employers should give careful consideration to this revised guidance.
The revised guidance from OSHA starts out by emphasizing the key principles of the Occupational Safety and Health Act (OSH Act) and reminds employers that they are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. OSHA recommends that a COVID-19 prevention program be implemented which OSHA states “is the most effective way to mitigate the spread of COVID-19 at work.” In the revised guidance, OSHA describes the elements of an effective COVID-19 prevention program which includes:
- Assigning a workplace coordinator to be responsible for all COVID-19 issues on the employer’s behalf.
- Performing a thorough hazard assessment that involves workers and their representatives to identify potential workplace hazards related to COVID-19.
- Identifying precautions in line with the hierarchy of controls: elimination, substitution, engineering controls like installing physical barriers, workplace administrative policies, and personal protective equipment (PPE).
- Considering enhanced protections, such as telework or work in less densely, better-ventilated facilities, for workers at higher risk for severe illness, such as older adults and those who have serious underlying medical conditions putting them at higher risk for severe illness from COVID-19.
- Establishing a system for communicating effectively with workers in a language they understand and also in a manner accessible to individuals with disabilities.
- Educating and training workers on COVID-19 symptoms and hazards, as well as the policies and procedures established and implemented for their protection.
- Isolating workers who show symptoms at work, and instruct infected or potentially infected workers to isolate or quarantine at home.
- Performing enhanced cleaning and disinfection after people suspected or confirmed to have COVID-19 have been in the workplace by following the CDC’s cleaning and disinfection guidelines.
The revised guidance also indicates that employers should make COVID-19 vaccines available at no cost to eligible employees and 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.
Additionally, OSHA has included guidance related to “What Workers Need to Know about COVID-19 Protections in the Workplace” which included the following best practices and recommendations:
- Recognize that wearing a mask is not a substitute for maintaining proper social distancing (6 feet or more).
- When workers have to work within 6 feet of each other because of factors such as the placement of workstations, install solid barriers such as plexiglass shields.
- Provide appropriate face coverings to employees at no cost and be sure those face coverings are either surgical masks or cloth coverings composed of at least two layers.
- Create “an anonymous process for workers to voice concerns about COVID-19-related hazards” and take other steps to protect employees against retaliation for speaking out about safety and health concerns.
- Carefully examine facility ventilation systems to determine any necessary improvements or changes.
- Place posters in work areas encouraging employees to engage in hand hygiene and physical distancing.
- Exercise caution to not unnecessarily require a COVID-19 negative test result or a doctor’s note as a prerequisite to return to work because of the significant delays that requirement may cause for both employers and employees.
- Recognize that workers may test positive for three months or more after recovering from COVID-19 symptoms, but, at the same time, not represent a risk of infection to others if allowed to work.
While OSHA’s revised guidance is simply “guidance” at this point as opposed to regulation or standard, it could very well indicate that COVID-19 emergency temporary standards are in the works for the issues that the guidance addresses. In the meantime, employers should review any current COVID-19 prevention programs that are in place to ensure that their programs are consistent with OSHA’s revised guidance and update as necessary.
For additional information on OSHA’s guidance on preventing COVID-19 in the workplace, contact us at www.NewFocusHR.com.
Written by: Patrick McKenna, SHRM-CP