OSHA Releases New COVID-19 Safety Guidance Following President’s Order

The U.S. Occupational Safety and Health Administration (OSHA) has issued enhanced COVID-19 safety guidance to help employers and their employees implement a COVID-19 prevention program and better identify risks which could lead to exposure and infection. On January 21,  President Biden issued an Executive Order directing OSHA to revise its guidance on COVID-19 safety.

In announcing the revised guidance, OSHA makes clear that it is not “a standard or regulation, and it creates no legal obligations”. Instead, the “recommendations are advisory in nature [and] informational in content”. Currently, the guidance applies only to private sector employees. However, public sector employers covered by the Illinois Occupational Safety and Health Act, including school districts, should be mindful of the revised guidance, because Illinois OSHA generally follows federal OSHA on substantive issues. Additionally, the President’s COVID-19 relief plan includes a request that Congress extend OSHA’s enforcement authority to public sector employers for COVID-19 workplace safety issues.

OSHA reaffirms that implementing a COVID-19 prevention program is the most effective way to reduce the spread of the virus. Its revised guidance identifies several key elements of a COVID-19 prevention program. These elements go beyond conventional EHS protocols and borrow from strategies publicized by the EEOC and public health agencies over the course of the pandemic. They include the following:

• Workplace coordinator: Assign a workplace coordinator who is responsible for COVID-19 issues on the employer’s behalf.
• Hazard assessment: Conduct a thorough hazard assessment to identify where and how employees might be exposed to COVID-19 at work, with input from employees and their representatives.
• Hierarchy of controls: Apply OSHA’s “hierarchy of controls” to identify effective engineering controls, workplace administrative controls and the use of personal protective equipment (PPE).
• Telework and other supportive policies for high risk employees: Consider additional protections for employees at higher risk for severe illness through supportive policies and practices, including allowing telework arrangements and reasonable accommodations for employees with disabilities.
• Two-way communications system: Adopt a two-way communications system, in language and formats that employees can understand, for employees to report COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards in the workplace and for the employer to use to notify employees of exposures and closures.
• Employee, contractor and visitor education and training: Educate and train employees, contractors and other onsite visitors on the employer’s COVID-19 policies and procedures, again using format(s) and language(s) that those stakeholders can understand.
• Non-punitive attendance policies: Instruct employees who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19, modifying attendance policies as necessary to ensure that they are non-punitive.
• Use of paid leave benefits for isolated and quarantined employees: Minimize the negative impact of quarantine and isolation on employees, allowing them to telework when possible or to use available paid leave, including leave previously available under the Families First Coronavirus Response Act (FFCRA).
• Employee screening and testing: Follow state and local guidance on workplace COVID-19 and provide employees with available information on available screening and testing in the community
• OSHA recording and reporting: Accurately record and report COVID-19 infections and deaths.
• Employee vaccines: Make COVID-19 vaccinations available at no cost to all eligible employees and provide information and training on the benefits and safety of vaccinations.
• Strict COVID safety compliance even for vaccinated employees: Do not distinguish between employees who are vaccinated and those who are not. OSHA cautions that vaccinated employees must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not clear evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

Some of the program elements identified by OSHA in the above list have implications beyond workplace safety and may trigger collective bargaining obligations and concerns under other federal and state laws, including the Americans With Disabilities Act and the Family and Medical Leave Act. Franczek lawyers have been partnering with employers throughout the pandemic to identify and implement practical and effective measures to address COVID-19 in the workplace. Employers with questions about the new OSHA guidance or a COVID-19 prevention program should contact Tracey Truesdale, Jason Patterson or the Franczek attorney with whom the work.