OSHA Provides Stronger Workplace Guidance on COVID-19

By Fiona W. Ong - Shawe Rosenthal LLP

January 29, 2021

As promised by the new Biden Administration, on January 29, 2021, the Occupational Safety and Health Administration (OSHA) provided stronger guidance for employers and employees on COVID-19 in the workplace. The guidance provides information to workers about protecting themselves from COVID-19 in the workplace, elements of effective prevention programs, and other recommendations on how to limit the spread of COVID-19.

OSHA notes that the guidance is not a legal standard or regulation and creates no new legal obligations, but provides recommendations as well as descriptions of existing safety and health standards. OSHA further reminds employers of their obligation under the General Duty clause to provide a safe workplace. It also reminds employers that it has provided more specific guidance for certain industries. OSHA will continue to update this guidance as more information becomes available.

Information for Workers. OSHA reiterates that workers should maintain a distance of at least six feet from others if possible, wash hands, cover their nose and mouth with a tissue or elbow when sneezing or coughing, and use face coverings. OSHA emphasizes that face coverings do not eliminate the need for other measures, such as distancing or handwashing, and should still be worn even after vaccination, given the uncertainties as to how vaccination affects transmissibility. Workers should also ask their employers about other steps that have been taken in their workplace.

COVID-19 Prevention Programs. OSHA asserts that a workplace prevention program is the most effective way to mitigate the spread of COVID-19 at work, and should include the following elements:

1.    Assignment of a workplace coordinator to be responsible for COVID-19 issues.
2.    Identification of where and how workers might be exposed to COVID-19 at work, by conducting a hazard assessment, ideally including workers who are most familiar with the work conditions.
3.    Identification of a combination of measures that will limit the spread of COVID-19 in the workplace, in line with the principles of the hierarchy of controls. According to OSHA, “This should include a combination of eliminating the hazard, engineering controls, workplace administrative policies, personal protective equipment (PPE), and other measures, prioritizing controls from most to least effective, to protect workers from COVID-19 hazards.” Examples include the key measures identified below.
4.    Consideration of protections for workers at higher risk for severe illness through supportive policies and practices. This includes reasonable accommodations for those with disabilities, and other modifications for high-risk individuals.  
5.    Establishment of a system for communicating effectively with workers and in a language they understand.
6.    Educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand.  
7.    Instruct workers who are infected or potentially infected to stay home and isolate or quarantine. OSHA recommends that absence policies be non-punitive.
8.    Minimize the negative impact of quarantine and isolation on workers, such as by allowing telework or the use of paid leave, including leave under the Families First Coronavirus Response Act through March 31, 2021.
9.    Isolating workers who show symptoms at work. They should be sent home and encouraged to seek medical attention.
10.    Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. As noted by OSHA, CDC recommendations include: closing areas, opening outside doors and window, waiting as long as practical (optimally 24 hours), cleaning and disinfecting immediate work areas and equipment used by the infected person, vacuuming if needed, providing cleaning workers with disposable gloves and possibly other PPE, disinfecting surfaces with an EPA-approved disinfectant, and complying with OSHA standards on hazard communication and PPE.
11.    Providing guidance on screening and testing. Follow state and local guidance, if any, and inform employees of any employer-required testing and testing options. OSHA reminds employers that testing is not a replacement for other protective measures, as not all infections are detected through testing.
12.    Recording and reporting COVID-19 infections and deaths that are work-related, as required by OSHA.
13.    Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
14.    Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.  
15.    Not distinguishing between workers who are vaccinated and those who are not. All should comply with protective measures, given the lack of information about how the vaccine affects transmissibility.
16.    Comply with Other applicable OSHA Standards, such as PPE, respiratory protections, sanitation, protection from bloodborne pathogens, and access to medical and exposure records.

OSHA further provides extensive additional detail on the following key measures for limiting the spread:

•    Separate and send home infected or potentially infected workers. Workers should follow CDC guidelines for release from isolation, whether they have been diagnosed with COVID-19 or have symptoms, or have been exposed, which OSHA summarizes in detail in its guidance.

•    Implement physical distancing in all communal work areas, including by: limiting the number of people in one place at one time (e.g. flexible worksites, work hours, and meetings); increasing physical space between workers and between workers/customers; altering workspaces to help maintain physical distancing (including use of signage). Other items are also listed.

•    Install barriers where physical distancing cannot be maintained. They should block face-to-face pathways and minimize openings. OSHA again reminds employers that barriers do not replace the need for other protective measures.

•    Require the use of face coverings. OSHA states that employers should provide the face coverings to employees, and they should meet certain requirements as to fit and double-layers. Both employees and visitors should be required to wear face coverings, with certain limited exceptions, such as for accommodations for disabilities or safety issues. OSHA reminds employers that the use of face coverings does not eliminate the need for physical distancing.

•    Improve ventilation. The CDC has provided guidance on recommended actions to accomplish this.

•    Use personal protective equipment (PPE) when necessary. This occurs when the other measures identified are not sufficient. The employer must identify what PPE is necessary, provide the PPE, and comply with OSHA standards on PPE.

•    Provide the necessary supplies for good hygiene. This includes tissues, trash cans, soap/water, hand sanitizer, time to wash, and posters on hygiene. Employers should promote personal health monitoring.

•    Perform routine cleaning and disinfection. CDC has provided guidance on this. Among other things, this should include all frequently-touched surfaces. Employers should also provide disinfecting wipes.

This is obviously a fast-moving and ever-changing situation, and we will continue to post alerts on any significant developments.