When the Occupational Safety and Health Administration (OSHA) recently issued its comprehensive guidance on what employers are expected to do to protect their workers from the COVID-19 virus, the bulk of the 6,000-word document repeated much of the advice that was contained in previous agency guidances issued over the course of the past year, but there are a few new wrinkles employers need to be aware of.
President Joe Biden ordered OSHA to issue the new guidance in an executive order he signed the day after he was inaugurated, which he also expects will lead to OSHA adopting an Emergency Temporary Standard (ETS) no later than March 15.
Why the rush? The new president’s labor union allies have argued that the previous administration’s OSHA COVID-19 guidances lacked the force and power of ETS regulations, which the unions loudly demanded. In the meantime, the state governments of Michigan, Virginia, California, Oregon and Washington State had chosen to develop their own ETS rules, and Virginia recently turned theirs into permanent regulations.
So, what is different about the new OSHA guidance that employers need to watch out for and is likely to end up being the draft the agency will work off of to create its ETS?
For one thing, employers are now responsible for providing their employees a COVID-19 vaccine at no cost. However, when it comes to applying the guidance, because at this time there is no evidence that COVID-19 vaccines prevent transmission from person-to-person, employers are expected to continue following protective measures in the workplace even if workers are vaccinated.
Employers should provide all workers with face coverings (that is, cloth face coverings or surgical masks), unless their work task requires a respirator. Many states did not require this and OSHA did not do so previously—it only recommended that employers purchase masks. Also, under the new guidance, when deaf employees are present in the workplace, employers are directed to consider acquiring masks with clear coverings over the mouth to facilitate lip reading.
OSHA says the face coverings should have at least two layers and should not feature exhalation valves or vents. In operations where face coverings can become wet or soiled, employers should provide workers with replacements daily or more frequently.
The guidance continues a previous directive that workers should quarantine if they come into contact with or were nearer than six feet from someone who is positive for COVID-19. Newly added to the quarantine requirement is that it applies to employees who had direct physical contact with a person who has COVID-19 (hugged or kissed them); shared eating or drinking utensils with them; and if someone who has COVID-19 sneezed, coughed or somehow got respiratory droplets on them.
Employers are directed to minimize the effect of employee quarantines and isolations by implementing non-punitive policies and provide paid sick leave. Employers with fewer than 500 employees are encouraged to provide Families First Coronavirus Response Act (FFCRA) leave which is still available (although not mandatory) through March 31, 2021, although it may be extended by Congress.
The employer also is directed to assign a workplace coordinator who will be responsible for dealing with COVID-19 issues as they arise. Employers must include workers (and their representatives) in conducting a thorough hazard assessment that identifies where and how workers might be exposed to COVID-19 at work.
“While the guidance does not discuss enforcement, it is the elephant in the room as the Biden administration has mandated OSHA review its COVID-19 enforcement procedures and launch a national program that focuses OSHA enforcement efforts on COVID-19 violations that put the largest number of workers at serious risk,” note attorneys Brittany Barrientos, Greta Bauer Reyes and Alisa Nickel Ehrlich of the Stinson LLP law firm.
They point out that as of the Jan. 29 date the guidance was issued, OSHA had received more than 13,000 complaints and has conducted approximately 1,600 inspections. State plans also have received more than 43,000 complaints and conducted more than 5,000 inspections. Federal OSHA has announced more than 300 inspections resulting from citations and proposed penalties of nearly $4 million.
Attorneys Raymond Perez II and Mary L. Bradley of the Jackson Lewis law firm observe that OSHA’s guidance related to the COVID-19 pandemic will continue to evolve and further changes are expected when the ETS is adopted.
The Biden Administration has named James Frederick, a former United Steelworkers safety official, to act as the head of OSHA on an interim basis and he may very well be nominated to run the agency. He has indicated that in his new role he will be focused on drafting and implementing an enforceable emergency COVID-19 ETS.
“While these efforts may be opposed by various industry groups, employers need to be aware of these potential new developments so they can take appropriate steps to ensure that they are following the best recommendations to address the pandemic and provide their employees a safe and healthy working environment,” Perez and Bradley stress.
