On January 29, 2021, OSHA issued revised COVID-19 updated guidance for employers following an executive order issued by President Biden directing the agency to do so. The guidance can be found here.

The guidance contains many suggestions that employers are already familiar with from other sources, including prior OSHA guidance, CDC recommendations, and various state executive orders; although, the new guidance is more comprehensive in certain areas.

The guidance focuses on assisting employers with implementing a workplace COVID-19 prevention program that OSHA states “is the most effective way to mitigate the spread of COVID-19 at work.” OSHA continues by discussing numerous items that should be addressed by employer including:

• Assignment of a workplace coordinator;
• Conducting a hazard assessment with employee involvement;
• Identification of measures that will limit the spread of COVID-19 utilizing a hierarchy of controls;
• Accommodation issues for workers at higher risk for severe illnesses;
• Communication and training for employees in a language they understand;
• Instructing employees who are infected or potentially infected to stay at home and isolate and quarantine while minimizing the negative impact of quarantine and isolation of employees following CDC guidelines;
• Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility;
• Improving ventilation systems;
• Ensuring employees are protected from retaliation for reporting COVID-19 concerns and setting up anonymous complaint protocols;
• Addressing other applicable OSHA standards such as PPE.

One interesting note is OSHA’s suggestion that employers need to “ensure that absence policies are non-punitive.” Of course, common sense dictates that employers should not have policies that encourage workers to come to work sick or when they have been exposed to COVID-19, but it is not clear whether OSHA will go further and take the position that a failure to offer a certain amount of paid sick leave is problematic. Thus, this is one issue that needs to be closely monitored for interpretation.

The guidance now states that employers should provide all workers with face coverings (unless their work requires a respirator) and also states that other individuals at the workplace should be required to wear them unless two years old or under, or such individuals are actively engaged in eating and drinking. In addition, employers should provide daily or more frequent replacements of face coverings when they become wet and soiled. These suggestions certainly indicate OSHA is potentially viewing face coverings as formal PPE, which it has not expressed a willingness to do so far.

In addition, the guidance also states employers should make COVID-19 vaccines available at no cost to eligible employees and to provide information and training on the benefits and safety of vaccinations. It further reminds employers that they should not distinguish between workers who are vaccinated and those who are not in complying with protective measures such as wearing face coverings or maintaining social distancing as there is no current evidence that vaccines prevent transmissions of the virus from person-to-person.

The guidance does not have the force of law and as OSHA has stated, it does not enforce such guidance. However, President Biden’s executive order also directed OSHA to determine whether COVID-19 emergency temporary standards are necessary and if so, to publish them by March 15. It seems likely the guidance is a window into what such emergency temporary standards might contain, e.g., requiring prevention programs with the components addressed above, mandating face coverings, and making vaccines available to employees. Recently, Virginia became the first state to pass permanent COVID-19 workplace safety and health standards and it also seems likely that the Virginia’s model could be relied on, at least in part, if OSHA determines such standards are necessary at the federal level. A copy of Virginia’s law can be accessed here.

If history is any indication, it also seems likely that under the current administration OSHA will move away from relying on voluntary compliance to stricter regulation and more aggressive enforcement particularly with COVID-19. It would thus be prudent for employers to carefully review the guidance to ensure their COVID-19 efforts meet OSHA expectations in anticipation of expected emergency temporary standards.