Recently I wrote a New Year’s Resolution that “[e]mployers should resolve to anticipate … changes [at OSHA under the Biden administration] and respond quickly. Resolve to Be Ready for Increased Enforcement of COVID-19 Health and Safety Standards (Jan. 6, 2021) (last accessed Feb. 22, 2021). Unlike most gym memberships, that Resolution has not been forgotten. To the contrary, President Biden issued an Executive Order on January 21, 2021 calling on the Secretary of Labor to issue “revised guidance to employers on workplace safety during the COVID-19 pandemic.” Executive Order on Protecting Worker Health and Safety (Jan. 21, 2021) (last accessed Feb. 22, 2021). OSHA shortly thereafter issued its revised guidance. See Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (Jan. 29, 2021).
The overarching theme of the guidance is that employers should implement a COVID-19 prevention program to prevent its spread. OSHA recommends several elements that the program should have. A few selected ones follow:
- Employers should designate a workplace coordinator to handle COVID-19 related issues;
- Employers should conduct a hazard assessment to identify potential COVID-19 hazards;
- Employers should take steps to mitigate the potential spread of COVID-19. This includes isolating workers that have potentially been exposed and quarantining workers with actual exposure, ensuring physical distancing and where appropriate, installing barriers, and providing face coverings at no cost;
- Employers should consider allowing remote work;
- Employers should provide COVID-19 screening in accordance with state and local guidance;
- Employers should not retaliate against employees for raising COVID-19 concerns, or for providing their own personal protective equipment;
- Employers should offer COVID-19 vaccinations at no cost; and
- Employers should not discriminate between those employees who have been vaccinated and those that have not.
The Bottom Line for Employers
This Guidance indicates that OSHA expects employers to take a number of active steps to protect employees from COVID-19 hazards. Although it does not have the force of law, it will guide OSHA investigations and enforcement priorities. Especially as employers continue to invite employees back to the workplace, they should carefully review the guidance to ensure that their COVID-19 prevention programs are largely consistent with OSHA’s recommendations. Also expect to see a formal OSHA COVID-19 emergency temporary standard issued in the near future.