On January 29, 2021, OSHA published Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, which combines new guidance from OSHA with previously published guidance from OSHA and recommendations from the Centers for Disease Control and Prevention (CDC).
COVID-19 has brought a host of problems for businesses large and small, including questions about how employers should handle vaccinations, how to handle layoffs during the pandemic, managing remote workers, and how to make the workplace safe as Texas fully opens for business and employees return to the office or jobsite.
OSHA’s newest guidance is not mandatory, but it may provide some insight into what will be included in the upcoming Emergency Temporary Standards (ETS) that the Biden administration has ordered OSHA to consider and possibly implement by March 15, 2021.
Preventing the Spread of COVID-19 in the Workplace: Emergency Temporary Standards
On January 21, 2021, the Biden Administration issued an Executive Order on Protecting Worker Health and Safety that, in part, ordered OSHA to:
- Issue revised guidance on preventing the spread of COVID-19 in the workplace,
- Consider whether emergency temporary standards on preventing the spread of COVID-19 in the workplace are necessary, and, if so, issue the ETS by March 15, 2021,
- Review OSHA’s enforcement efforts related to COVID-19, and
- Launch a national OSHA enforcement program focused on COVID-19 violations that put the largest numbers of workers at risk.
If OSHA determines that emergency temporary standards are necessary and adopts them, the ETS will be effective immediately and will remain in place until they become permanent six months later.
In the meantime, pursuant to the Executive Order, OSHA has issued revised guidance on preventing the spread of COVID-19 in the workplace, with recommendations that may provide a window into what we can expect if and when the ETS are issued.
Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
OSHA’s guidance recommends that employers implement COVID-19 prevention programs in the workplace and that employers include workers and union representatives in the program’s development. For workplaces that have already implemented COVID-19 prevention programs, the OSHA guidance provides an opportunity to review and revise existing programs and to prepare for possible emergency temporary standards that may be issued in the coming weeks.
Recommended elements of any COVID-19 prevention program should include:
- Conducting a hazard assessment,
- Identifying practices for preventing the spread of COVID-19 in the workplace,
- Ensuring that workers who are exposed to COVID-19 are isolated and sent home, and
- Providing protection from retaliation for workers who raise COVID-19 concerns.
OSHA’s guidance provides details that a COVID-19 prevention program should address, including 1) what workers should know about preventing COVID-19 in the workplace, 2) the roles of workers and employers in responding to COVID-19, and 3) key measures for limiting the spread of COVID-19 in the workplace.
What Workers Should Know About COVID-19 Protections in the Workplace
OSHA’s guidance for what workers should know includes:
- They should remain six feet apart from other workers whenever possible,
- They should wash hands often, cover mouth and nose when sneezing, and monitor their health for COVID-19 symptoms,
- They should wear face coverings that contain at least two layers of tightly woven fabric and that do not have exhalation vents, even if they do not feel sick, and
- They should follow these guidelines even after receiving the vaccination.
The Roles of Workers and Employers in Preventing the Spread of COVID-19 in the Workplace
OSHA recommends that workers should be engaged in both planning and implementation of the COVID-19 prevention program, and that the plan should include:
- Assigning a workplace COVID-19 coordinator and communicating effectively with workers,
- Identifying where and how workers may be exposed to COVID-19,
- Identifying a combination of practices that will limit the spread of COVID-19, such as isolating workers who have been exposed, physical distancing, use of physical barriers, use of face coverings, use of other appropriate PPE, improved ventilation, routine disinfection, and providing supplies that are needed,
- Providing reasonable accommodations for high-risk workers such as permitting them to work remotely or providing a less-densely occupied and ventilated workspace,
- Educating and training employees on COVID-19 policies and procedures,
- Isolating workers who show symptoms and thoroughly cleaning and disinfecting their workspace,
- Encouraging workers who have been exposed to quarantine and to remain home, and ensuring that absence policies are not punitive,
- Minimizing the effect of quarantine by allowing employees to work remotely, work in isolation, or to use paid leave while quarantining,
- Providing guidance to employees on screening and testing,
- Recording and reporting COVID-19 infections and deaths,
- Protecting workers from retaliation for reporting and setting up a system for employees to voice their concerns anonymously,
- Making vaccines available to employees at no cost,
- Requiring workers who have been vaccinated to continue following the policies and procedures including use of PPE, and
- Observing existing OSHA standards that may be relevant, including requirements for PPE, respiratory protection, sanitation, access to medical and exposure records, and protection from bloodborne pathogens.
Additional Guidance for Preventing the Spread of COVID-19 in the Workplace
OSHA’s guidance provides additional details related to key measures for limiting the spread of the virus, including:
- How long exposed workers should remain in isolation,
- Details about what constitutes a potential exposure to COVID-19 and what quarantine means,
- How to implement policies for physical distancing of employees,
- Types of physical barriers that may be effective in the workplace,
- The proper use of face coverings,
- How to improve ventilation in the workplace,
- Types of personal protective equipment that may be necessary,
- Provision of supplies for hygiene, and
- Routine cleaning and disinfection.
We hope that we are nearing the end of the pandemic, and yet cases are still rising in some areas. As we wait for the population to receive vaccinations, most businesses in Texas are struggling to reopen, stay open, and go back to business as usual.
If your workplace does not have a COVID-19 prevention plan, you should consider what will be required to reopen or remain open safely, be aware of OSHA’s guidance for preventing the spread of COVID-19 in the workplace, and keep an eye out for the emergency temporary standards that OSHA may be publishing within the next few weeks.
Please feel free to contact one of our Murray Lobb attorneys to obtain our legal advice about how you should handle your company’s COVID-19 prevention policies and procedures, reporting, and related personnel issues.