By Conn Maciel Carey’s COVID-19 Task Force

As we shared earlier this month, President Biden’s Day 1 OSHA Executive Order On Protecting Workers from COVID-19, directed federal OSHA to take 3 key actions:

1. issue new COVID-19 guidance to protect workers within 2 weeks;
2. consider whether to issue a COVID-19 emergency temporary standard (and to do so by March 15^th); and
3. enhance health and safety enforcement, including with a National Emphasis Program).

On Friday, January 29, 2021, OSHA delivered on the first of those mandates from the Executive Order, issuing a detailed set of new COVID-19 guidance for employers and workers entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

OSHA explained in its press release announcing the new guidance:

“The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus prevention program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.”

We first heard about the new guidance during a Small Business Administration Labor and Safety Round Table on Friday morning, when the new Acting Head of OSHA, Jim Frederick, and new Senior Advisor, Ann Rosenthal, gave an update about the new Administration’s priorities and plans for OSHA.  Mr. Frederick said the updated guidance is just “OSHA’s first step to re-establishing that OSHA is advocating for workers.”

As it comes still only in the form of guidance, the document technically does not create new legal obligations, but OSHA under the Biden Administration has already made clear that COVID-19 enforcement will be a priority, and unless (or really, until) it issues an emergency temporary standard, this guidance will almost certainly be relevant to OSHA’s enforcement efforts.  For example, like OSHA does in so many areas without existing standards, it is likely to point to this guidance to establish recognition of a serious hazard and the existence of feasible means of abatement for general duty clause citations.  Likewise, it could point to this guidance to challenge employer’s PPE determinations.

Under the Trump Administration, Fed OSHA issued comprehensive COVID-19 guidance, but it typically used the least mandatory language; for example, suggesting that employers “should consider” various risks and controls, which made it somewhat hard for OSHA to use for enforcement.  That is, in part, why we saw OSHA issue only three COVID-19 general duty clause citations.  And whatever citations OSHA did issue, whether under the general duty clause or existing regulations, required several levels of review up to OSHA’s National Office in Washington, DC, which generally meant they would not come until the very end of OSHA’s six month statute of limitations period.

OSHA’s new guidance references previous guidance issued by OSHA, CDC and EPA over the last year, but it has a different, more mandatory tone, and includes a few important substantive differences.  And as for how it may be used in enforcement, regardless of a new emergency temporary standard, Ms. Rosenthal indicated that OSHA is streamlining the process for issuing COVID-19 related citations so they will be issued much more quickly.

The new OSHA officials and the new written guidance from OSHA also emphasize the protection of vulnerable populations (older adults with serious underlying medical conditions and persons with disabilities), and strongly recommend employers directly engage with their workers and labor unions as they develop or improve their COVID-19 Prevention Programs.

As to the substance of OSHA’s new guidance, there is a lot of overlap and similarity from what Trump’s OSHA had already issued, but among the notable differences, the new guidance includes a much stronger recommendation for all workplaces to develop a written COVID-19 Infection Control Plan, details how employers should conduct a COVID-19 hazard assessment, and pushes employers to adopt policies protecting employees from punishment if they remain out of work due to potential infection.  Other notable elements of the guidance you should note, which had not previously been emphasized on the national level, include:

• communications with workers in a format and language they can understand (non-English languages and American Sign Language)
• setting up an anonymous process for workers to voice their concerns about COVID-19 related hazards
• making COVID-19 vaccinations available at no cost to eligible employees
• ensuring that vaccinated employees still follow the same protective measures as non-vaccinated employees
• clarifying additional circumstances that could trigger a close contact quarantine requirement; i.e., in addition to being within 6’ of someone with COVID-19 for a total of 15 minutes over a 24-hour period, employees should be required to quarantine if:
  • • they provided care at home to someone who is sick with COVID-19;
    • they had direct physical contact with a person who has COVID-19 (hugged or kissed them);
    • they shared eating or drinking utensils with a person who has COVID-19; or
    • someone who has COVID-19 sneezed, coughed, or somehow got respiratory droplets on them.
• incorporating CDC and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) guidance on improving ventilation in the work environment.  Some of the ventilation recommendations are similar to what OSHA previously identified in its guidance on ventilation, such as using HVAC system filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, but other new recommendations including keeping systems running longer hours – 24/7 if possible, and disabling demand-controlled ventilation (DCV).  OSHA even provides a link to the ASHRAE guidelines for information on these recommendations.

OSHA has stated it will continue to update its guidance based on developments in science, best practices, and standards.  We will continue to keep you informed.

More importantly, we expect a decision soon on OSHA’s plans for a federal COVID-19 emergency temporary standard.  President Biden set a March 15^th deadline for OSHA to enact a rule, if the agency concludes one is needed.  Mr. Frederick indicated on Friday that “at OSHA, we are moving as quickly as possible.”  Although a notice-and-comment period is not required under the Administrative Procedure Act for an emergency temporary standard, it is not prohibited, and during the SBA Roundtable Friday, we encouraged the OSHA Officials there to do so, and they committed to considering input from Industry in some form or another.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.