OSHA Publishes Comprehensive COVID-19 Guidance for the Workplace

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published updated guidance for employers on COVID-19.  The guidance is not a mandatory OSHA standard, but it is likely a preview of an emergency COVID-19 standard that is expected from OSHA in the near future.

Under the guidance, employers are advised to create a comprehensive COVID-19 prevention program.  The program should contain the following elements:

1. Designation of a workplace coordinator who will be responsible for COVID-19 issues on the employer's behalf.
2. Identification of where and how workers might be exposed to COVID-19 at work by conducting a thorough assessment of the workplace, with input from employees and their representatives.
3. Identification of measures that will limit the spread of COVID-19 in the workplace. This should involve use of a “hierarchy of controls” as discussed in prior OSHA guidance.  Of note, OSHA recommends that all employees be provided a face covering at no cost.
4. Consideration of additional protections for workers at higher risk for severe illness (older adults and those with serious underlying medical conditions) through supportive policies and practices.
5. Establishment of a system for communicating policies and procedures effectively with workers in a language they understand.
6. Establishment of a system to educate and train workers on COVID-19 policies and procedures and to retain records of such training.
7. Process for informing workers who are infected, or potentially infected, to stay home and isolate or quarantine.
8. Steps to minimize the negative impact of quarantine and isolation on workers by allowing telework or use of paid sick leave when possible. (Note that certain employers may be entitled to 100% reimbursement through tax credits to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through March 31, 2021.  See our Client Alert here.
9. Process for isolating workers who show symptoms at work.
10. Process for conducting CDC recommended cleaning and disinfection procedures when someone with COVID-19 has been in the workplace.
11. Process for conducting workplace testing (if applicable).
12. Process for recording and reporting COVID-19 infections and deaths to OSHA and local health departments if required.
13. An anonymous process for workers to voice concerns about COVID-19-related hazards without fear of retaliation.
14. Plan to inform employees about benefits and safety of COVID-19 vaccine and how to obtain the vaccine at no cost.
15. Requirement that workers who are vaccinated continue to follow protective measures (wearing a face covering and physical distancing) because there is not yet sufficient evidence that vaccines prevent transmission of COVID-19 from person-to-person.
16. Plan for following existing OSHA standards applicable to COVID-19 (i.e. respiratory protection, PPE, etc.)

While there are still no enforceable COVID-19 standards from OSHA, employers must comply with existing safety and health standards and regulations issued by OSHA or an OSHA-approved state plan.  For example, California, Oregon and Virginia require that employers adopt COVID-19 workplace plans containing similar elements to those contained in OSHA’s guidance.  Additionally, OSHA’s General Duty Clause requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.  OSHA’s new guidance is likely to play a role in determining future compliance with the General Duty Clause.

Contact your Vorys lawyer if you have questions about implementing a COVID-19 prevention program in your workplace.

____

VORYS COVID-19 TASK FORCE

Outside of this new law, employers continue to face myriad issues as COVID-19 continues to spread and impact communities and workplaces (some of these issues are addressed in our prior alerts located here).  We will continue to keep you posted on any important developments.  In the meantime, if you have any questions regarding this new law or any other aspect of COVID-19, please contact your Vorys lawyer. 

We have also established a comprehensive Coronavirus Task Force, which includes attorneys with deep experience in the niche disciplines that we have been and expect to continue receiving questions regarding coronavirus. Learn more and see the latest updates from the task force at vorys.com/coronavirus.