OSHA Issues New Employer Guidance Related to COVID-19

By Neel, Hooper & Banes, P.C.

February 4, 2021

Every new administration enters its tenure with specific priorities that may greatly affect employers. They will often pick one particular government agency to implement and enforce those priorities and beef up the manpower for same.  With President Obama, it was the EEOC, President Trump, Customs and Border Protection, and with President Biden, it appears to be the Occupational Health and Safety Administration (OSHA).  The reason for this is clearly set out at https://www.whitehouse.gov/priorities/, where President Biden says, as his top priority, that he “will move quickly to contain the COVID-19 crisis.”  OSHA wasted no time on this, and on January 29, 2021 issued “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (see  https://www.osha.gov/coronavirus/safework).

The message for employers is that the Biden Administration will hold them accountable for not implementing “appropriate control measures.”  The guidance goes on to list “key measures for limiting the spread of COVID-19, starting with separating and sending home infected or potentially infected people from the workplace, implementing physical distancing, installing barriers where physical distancing cannot be maintained, and suppressing the spread by using face coverings.  It also provides guidance on use of personal protective equipment (PPE), when necessary, improving ventilation, providing supplies for good hygiene, and routine cleaning and disinfection.”  It says nothing about requiring vaccines, but we are watching for that.  The guidance does go into an incredible amount of detail on what the administration expects employers, not all of it clear in either and we recommend every employer review it carefully.       

The stated purpose of this guidance betrays its intent.  OSHA says that while “[t]his guidance is not a standard or regulation, and it creates no new legal obligations,…[i]t contains recommendations as well as descriptions of existing mandatory safety and health standards.”  OSHA then emphasizes that the recommendations are “intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.”  If there was any doubt at this point that OSHA intends to use it as an inspection tool for fines and other actions, it removes this doubt by emphasizing that the OSHA Act requires employers to “comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan.  In addition, the Act's General Duty Clause, Section 5(a)(1), 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.”

Given the foregoing, we recommend that all employers review this new guidance and keep watch on anticipated additional guidance from OSHA.  If you require any assistance with compliance, inspections or actions by OSHA, the experienced lawyers at Neel, Hooper & Banes, P.C. stand ready to assist.