In what it is referring to as “stronger worker safety guidance,” last Friday the Occupational Safety and Health Administration published its new guidance on COVID-19, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The new Guidance document, which includes 16 elements that OSHA says should be part of an effective COVID-19 prevention program, addresses essentially the same recommendations that have appeared on OSHA’s website for most of last year, including the following:
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Conduct a hazard assessment
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Implement control measures, including
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Physical distancing
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Installing barriers where physical distancing cannot be maintained
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Use of face coverings
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Improving ventilation
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Good hygiene practices
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Routine cleaning and disinfecting
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Train on COVID-19 and the employer’s policies and procedures to limit the spread of the virus in a language employees can understand
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Screen infectious or potentially infectious employees
The new Guidance does not make any changes in the existing guidance on the recording and reporting of COVID-19 cases.
What’s new
The Guidance does offer a few recommendations not found in the Trump Administration’s guidance documents. The January 29 Guidance recommends that face coverings “be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents,” per the recommendation of the Centers for Disease Control and Prevention. Interestingly, the OSHA Guidance also provides that employers should make a COVID-19 vaccine or vaccination series “available at no cost to all eligible employees.” Given the present challenges to get an appointment for COVID-19 vaccines, this provision seems a little optimistic.
In responding to a question during a Stakeholder Session Friday afternoon about the differences between the prior Administration’s Guidance and the January 29 Guidance, an OSHA spokesperson said that the new Guidance represented “a difference in tone.” According to the spokesperson, the prior Administration had made “suggestions” for employers to consider. By contrast, OSHA is now telling employers that they “should” follow its Guidance. For those of you who have been trying in good faith to protect your employees and prevent community spread, you may have already thought that you not only “should” follow the CDC/OSHA guidance, but in fact were doing so.
Emergency standard on the way
OSHA appears to be fully committed to following through on President Biden’s January 21 Executive Order to issue an Emergency Temporary Standard addressing COVID by March 15. Until such a Standard is issued, OSHA will continue to assess employers’ compliance primarily with the Respiratory Protection Standard and under the General Duty Clause, which requires employers to provide a safe and healthy workplace when there are recognized hazards that could lead to death or serious physical harm. Employers can look to the four states with COVID-19 Standards – Virginia, Michigan, California, and Oregon – for guidance in what might be included in the federal OSHA Standard. And certainly, the January 29 Guidance document itself should provide a useful outline of what to expect.
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