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Friday, February 5, 2021

As Published in the Daily Business Review: OSHA's New, Stronger COVID-19 Guidance - Are You Compliant?

By: Lindsay M. Massillon | February 5, 2021

As published in the Daily Business Review

On Jan. 21, 2021, President Joe Biden signed an executive order on protecting worker health and safety that directed the Occupational Health and Safety Administration (OSHA): to issue revised guidance to employers on workplace safety during the COVID-19 pandemic; consider issuing emergency temporary standards on COVID-19 and issue such standards by March 15; review enforcement standards related to COVID-19; focus enforcement efforts related to COVID-19 on violations by larger employers and employers with whistleblower complaints; and conduct a multilingual outreach campaign to educate workers of their rights under the law.

OSHA Guidance Highlights—Creation of a Prevention Program

In compliance with the president’s executive order, OSHA issued its revised guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” on Jan. 29. While this particular publication does not create new legal obligations, employers should be familiar with the specifics of the guidance as failure to follow these stricter guidelines could expose employers to violations of Section 5 of the Occupational Safety and Health Act (the act). Section 5 of the act, referred to as the “general duty clause,” requires that all employers furnish a workplace free of recognized hazards. Issuance of this guidance ticks off one of the president’s requirements and employers should anticipate issuance of mandatory standards once Marty Welsh, pro-labor mayor of Boston, is confirmed as the Secretary of Labor.

At the heart of the administration’s guidance is the emphasis placed on the development and implementation of a COVID-19 prevention program, which includes designating a workplace coordinator who will be responsible for COVID-19 issues, assessing the hazards related to COVID-19, identifying measures to limit the spread of COVID-19, educating and training workers, enforcing isolation of infected workers, among other action items. In fact, OSHA’s home page now includes a prominent call to action for employers to “implement a COVID-19 prevention program tailored to [the employer's] workplace,” linking directly to the new guidance. OSHA’s publication also reminds employers of their obligations under existing regulations, such as reporting work-related cases of COVID-19 on Form 300 logs in the event the case is a confirmed case of COVID-19, is work-related, and involves recording criteria (such as days off from work, or medical treatment). The guidance also suggests employers inform employees of their right to a safe and healthful workplace and implement a process whereby employees can anonymously voice concerns regarding COVID-19 related hazards. In light of the president’s executive order, it is apparent that the administration is going to prioritize complaints from employees claiming their employer is not in compliance with COVID-19 guidelines and will vigorously investigate such complaints.

As COVID-19 vaccination rollout continues across the nation, employers are also advised to make vaccinations available at no cost to employees and include details on vaccination as part of the employer’s education efforts. While employers can make vaccinations mandatory, encouraging vaccination and educating employees on the science-based research may be path of least resistance for employers concerned with push-back from employees. OSHA reminds employers that vaccinated employees must still continue to adhere to protective measures so that there is no difference in treatment between vaccinated and nonvaccinated employees.

OSHA’s guidance also makes it clear that the administration expects employers to require face coverings and provide coverings for employees at no cost.

Key Takeaways for Employers

This article does not cover all the detail contained in the administration’s new guidance and employers of all sizes are encouraged to review the guidance with human resources and management to ensure that all reasonable measures are taken to prevent the spread of the virus. Employers should also consult with employment counsel on drafting appropriate policies, including ensuring that the company’s employee handbook includes anti-retaliation provisions. Management should be trained to properly address and escalate any COVID-19-related concerns raised by employees to circumvent potentially costly whistleblower claims—keeping in mind the extra attention OSHA will pay to such complaints in accordance with the president’s directive. Employers are advised to maintain their prevention measures and policies in writing and to document all employee concerns and actions taken to address those concerns internally in the event of an OSHA investigation.

As noted above, this guidance is OSHA’s first step in compliance with the president’s mandate. Employers should be vigilant over the course of the coming weeks for issuance of emergency temporary standards (ETS) which is likely to turn these guidelines into actual requirements.

Lindsay M. Massillon is a shareholder at Fowler White Burnett. She focuses her practice on labor and employment law and commercial litigation. Contact her at LMassillon@fowler-white.com.

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