New OSHA Guidance on COVID-19 Workplace Measures Issued January 29

Readers will recall that we reported that the Biden Administration had instructed OSHA to issue a revised guidance to employers on workplace safety during the COVID-19 pandemic.  These guidelines were published on Friday.

As stated by OSHA, the guidance “is intended to inform employers and workers in most workplace settings outside of healthcare to help them identify risks of being exposed to and/or contracting COVID-19 at work and to help them determine appropriate control measures to implement.”  This guidance appears to apply only to non-healthcare and emergency response settings, as it notes separate guidance applicable to those entities, referring to the CDC and OSHA guidances.   The guidance notes that its recommendations “are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”

Regardless of the fact that the guidance is not law, in order to ensure compliance with OSHA’s “general duty” clause, all employers are strongly encouraged to read it thoroughly to determine what, if any, changes need to be made to their workplaces.

The guidelines do several things. The first is to instruct employers to implement a COVID-19 Prevention Program, nothing that the “most effective programs engage workers and their union or other representatives in the program’s development, and include the following key elements: conducting a hazard assessment, identifying a combination of measures that limit the spread of COVID-19 in the workplace, adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace, and implementing protections from retaliation for workers who raise COVID-19 related concerns.”

The guidance then provides additional detail on particular measures and should be reviewed carefully.  These include: separating and sending home infected or potentially infected people from the workplace, implementing physical distancing in all communal work areas, installing barriers where physical distancing cannot be maintained, and suppressing the spread of the hazard by using face coverings.  It also provides guidance on improving ventilation, use of personal protective equipment when necessary, providing supplies necessary for good hygiene practices, and performing routine cleaning and disinfecting.  Many, if not all, of these are things employers are already doing but it is still worth a review and confirmation that all steps are being met wherever possible.

One of the things the guidance does is recommend more direct involvement by employees and their representatives in the prevention programs.  To that end, it recommends, among other things, assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf; establishment of a system for communicating effectively with workers and in a language they understand by asking workers to report COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace to the employer without fear of reprisal; education and training workers on COVID-19 policies and procedures using accessible formats and in a language they understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable); providing guidance on screening and testing, and implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.

The guidance does discuss vaccination and it refers to making the vaccine available at no cost to all eligible employees and not distinguishing between workers who are vaccinated and those who are not in terms of protective measures. In other words, even workers who have been vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant.

The guidance is called Protecting Workers:  Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace and can be found at https://www.osha.gov/coronavirus/safework.

 

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell
207-947-4501