New OSHA Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace

In response to President Biden’s Executive Order requiring action to protect workers amid the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) released a comprehensive new guidance document for employers, titled: Protecting Workers: Guidance on Mitigation and Preventing the Spread of COVID-19 in the Workplace. Although much of the guidance document focuses on safety principles previously expressed by OSHA and other state and federal entities, the new guidance does highlight several new and notable mitigation and prevention measures. The guidance does not create any new legal obligations as of yet, although employers should review the guidance document, and take note, as it provides insight into what the new Administration will expect moving forward. It also provides helpful strategies and best practices to identify risks of exposure and contraction in workplace settings.

To summarize, some of the new mitigation and prevention measures include:

The creation of an employer-implemented COVID-19 Prevention Program in the workplace. OSHA recommends that employers engage workers and their union or other representatives in the development of a COVID-19 Prevention Program. Per OSHA, key elements of the program should include:

• The assignment of a workplace coordinator to be responsible for COVID-19 issues;
• Conducting a hazard assessment to determine where and how workers might be exposed to COVID-19 while at work;
• Identifying a combination of measures that limit the spread of COVID-19 in the workplace, prioritizing controls from most to least effective;
• Suppressing the spread by using face coverings, and by providing face coverings to all workers at no cost.  This includes considering reasonable accommodations for any workers who are unable to wear face coverings due to a disability;
• Communicating with, educating, and training workers on the COVID-19 policies and procedures in a language they understand, and in a manner that can be accessible to those with disabilities;
• Consideration of protections for workers at higher risk for severe illness (for example, older adults and people who have serious underlying medical conditions) through supportive policies and practices;
• Instructing workers who are infected or potentially infected to stay home and isolate/quarantine to prevent or reduce the risk of transmission.  This includes ensuring that absence policies are non-punitive, and minimizing the negative impact of quarantine/isolation on workers;
• Adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace;
• Implementing protections from retaliation for workers who raise COVID-19 related concerns, which includes consideration of a hotline or other method for workers to voice concerns anonymously;
• Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the building;
• Providing guidance on screening and testing, as well as information and training on the benefits and safety of vaccinations.  Of note, OSHA recommends in this guidance that employers should make a COVID-19 vaccine or vaccination series available at no cost to all eligible employees; and
• Following all recording and reporting requirements. Remember, employers are responsible for recording work-related cases of COVID-19 illness on their FORM 300 logs when: (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria (for example, medical treatment, days away from work). Employers must also follow certain requirements when reporting COVID-19 fatalities and hospitalizations to OSHA. More information is available on OSHA's website. Employers should also report outbreaks to health departments as required and support their contact tracing efforts.

Not distinguishing between workers who are vaccinated and those who are not. The OSHA guidance specifically states that a key aspect of the COVID-19 Prevention Program is that workers who are vaccinated “must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.” This may change as experts learn more about the protection that COVID-19 vaccines provide, but for now, do not distinguish protocols between workers who are vaccinated and those who are not.

Improving ventilation. The CDC has released important guidance about ways to improve ventilation and prevent the spread of COVID-19 in buildings, and OSHA provides a number of strategies as well within their guidance, with a specific reference to the American Society of Heating, Refrigerating and Air-Conditioning Engineers’ (“ASHRAE”) Guidance for Building Operations During the COVID-19 Pandemic. Of note, OSHA states that if ventilation cannot be increased, the employer should reduce occupancy level in the building. In addition, OSHA recommends the use of portable high-efficiency particulate air (“HEPA”) fan/filtration systems to help enhance air cleaning, and encourages ultraviolet germicidal irradiation (“UVGI”) as a supplement to help inactivate SARS-CoV-2.

Emphasis was also placed on:

• Implementing physical distancing;
• Installing barriers where physical distancing cannot be maintained;
• Providing supplies for good hygiene;
• Routine cleaning and disinfection;
• Using PPE in accordance with OSHA standards when necessary; and
• Following other existing OSHA requirements applicable to COVID-19 hazards.

Each of the aforementioned elements is discussed in more detail in the OSHA guidance. Although this guidance is not mandatory, and does not carry the weight of an OSHA standard, it is important to read and take appropriate measures to provide a safe environment, especially since OSHA may issue an emergency temporary standard (“ETS”) with similar mandatory provisions soon. As such, stay alert for more from OSHA on enforceable COVID-19 precautions. In addition, continue to monitor the CDC, EEOC, and state and local guidance in an attempt to keep your workplace free from recognized hazards.