One day after he was inaugurated, President Joe Biden followed through on a campaign promise to labor unions by ordering the Occupational Safety and Health Administration (OSHA) to begin the process of developing COVID-19 Emergency Temporary Standards (ETS) for employers.

OSHA responded by issuing new non-binding guidance on mitigating and preventing the spread of COVID-19 in the workplace. Any potential ETS that OSHA deems necessary must be adopted by March 15th. If OSHA chooses to issue ETS, the standards would take effect immediately and last no longer than six months, unless they are eventually adopted as a permanent standard.

During the Trump administration, OSHA resisted calls to adopt rules that would create new legal obligations for employers during the pandemic. Rather, the agency issued guidance specific to particular industries, such as healthcare facilities and meatpacking plants. However, many advocates have been critical of OSHA and its failure to adequately investigate workers’ complaints involving pandemic-related safety issues.

The new advisory guidance issued by OSHA is intended to assist employers and workers in most workplace settings outside of healthcare identify risks of exposure to COVID-19 at work and to help them determine appropriate control measures. In addition to the previous guidance from OSHA regarding face coverings, physical distancing, and routine cleaning, the recent guidance includes the following additional steps that employers and workers should take to maintain a safe and healthy workplace:

1.  Assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf.

2.  Identification of where and how workers might be exposed to COVID-19 at work. This includes a thorough hazard assessment to identify potential workplace hazards related to COVID-19.

3.  Identification of a combination of measures that will limit the spread of COVID-19 in the workplace. 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.

4.  Consideration of protections for workers at higher risk for severe illness through supportive policies and practices, including older adults who have serious underlying medical conditions or workers with disabilities.

5.  Establishment of a system for communicating effectively with workers and in a language they understand, all policies and procedures implemented for responding to sick and exposed workers in the workplace.

6.  Educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand, including non-English languages, and American Sign Language, or other accessible communication methods, if applicable. In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free of retaliation.

7.  Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19. Ensure that absence policies are non-punitive. Policies that encourage workers to come to work sick or when they have been exposed to COVID-19 are disfavored.

8.  Minimize the negative impact of quarantine and isolation on workers. When possible, allow them to telework, or work in an area isolated from others. If those are not possible, allow workers to use paid sick leave, if available, or consider implementing paid leave policies to reduce risk for everyone at the workplace.

9.  Isolating workers who show symptoms at work. Workers who appear to have symptoms upon arrival at work or who develop symptoms during their work shift should immediately be separated from other workers, customers, and visitors, 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. If someone who has been in the facility is suspected or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations.

11.  Providing guidance on screening and testing: Follow state or local guidance and priorities for screening and viral testing in workplaces. Testing in the workplace may be arranged through a company’s occupational health provider or in consultation with the local or state health department. Employers should inform workers of employer testing requirements, if any, and availability of testing options.

12.  Recording and reporting COVID-19 infections and deaths: Employers are responsible for recording work-related cases of COVID-19 illness on their Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related as defined by OSHA standards; and (3) the case involves one or more relevant recording criteria set forth by OSHA (e.g., medical treatment, days away from work).

13.  Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities.

14.  Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.

15.  Not distinguishing between workers who are vaccinated and those who are not: 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 not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

16.  Other applicable OSHA Standards: All of OSHA’s standards that apply to protecting workers from infection remain in place. These standards include: requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records. There is currently no OSHA standard specific to COVID-19; however, employers still are required under the General Duty Clause of the OSH Act to provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.

It is always advisable to consult with legal counsel regarding new OSHA standards or guidance. The attorneys in our Austin and Dallas offices are available to answer any questions you may have. You may contact us at info@gstexlaw.com.

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