OSHA Issues New COVID-19 Guidance in Response to President Biden's Executive Order

The following first appeared in the February 2021 issue of Hendrick, Phillips, Salzman & Siegel’s e-newsletter.

On January 21, 2021, the day after being sworn into office, President Biden issued an Executive Order on Protecting Worker Health and Safety. You can access the Executive Order by clicking here. The Executive Order directed the Secretary of Labor to issue within two weeks of the date of the Order revised guidance to employers on workplace safety during the COVID-19 pandemic. Less than 10 days later, on Friday, January 29, OSHA released updated guidance for mitigating and preventing the spread of COVID-19 in the workplace. The updated guidance can be accessed here.

The guidance suggests that the most effective way to mitigate the spread of COVID-19 in the workplace is to implement a COVID-19 prevention program. The guidance includes suggestions for an effective COVID-19 prevention program, including but not limited to the following elements:

• Assignment of a workplace coordinator responsible for COVID-19 issues.
• Education and training workers on COVID-19 policies and procedures using accessible formats and in a language they understand.
• Providing face coverings to employees at no cost.
• Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
• Consider protection for workers at higher risk for severe illness through supportive policies and practices.
• Performing enhanced cleaning and disinfection after workers with suspected or confirmed COVID-19 have been in the facility (this includes closing areas, and cleaning and disinfecting all immediate work areas and equipment).
• Employers must implement protection from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards.
• Not distinguishing between workers who are vaccinated and those who are not.
• Minimizing the negative impact of quarantine and isolation on workers (allow workers to use paid sick leave and the Families First Coronavirus Response Act paid leave).
• Implementing quarantine and isolation rules consistent with CDC guidance.

OSHA's updated guidance also includes links to industry-specific guidance. The guidance for the construction industry can be found here. The construction industry guidance suggests various engineering and administrative controls, as well as safe work practices, for in the workplace depending on the exposure risk level associated with construction work tasks. Notably, OSHA does suggest requiring construction workers to wear cloth face coverings in construction.

Importantly, the guidance does make it expressly clear that it is not a standard or regulations, and it creates no new legal obligations for employers. The guidance is intended to provide recommendations, as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and 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.