Since entering office on January 20, 2021, President Joe Biden has made responding to the COVID-19 pandemic a top priority. One of his very first executive acts directed the Occupational Safety and Health Administration (OSHA) to issue new guidance to employers for mitigating the spread of COVID-19 in the workplace. This approach contrasts starkly with that of the prior administration, which placed the burden on employers to refer to existing OSHA standards when evaluating their workplace safety programs. This new guidance is designed to help employers to identify risks of exposure to COVID-19 in workplace settings and to assist in developing safeguards against transmission of the virus.
One day after taking office, Biden signed the Executive Order on Protecting Worker Health and Safety, EO 13999, which instructed OSHA to revise its COVID-19 safety recommendations. One week later, OSHA complied with that order and issued “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The updated guidance advises employers on how to provide a safe work environment for their employees. It is not mandatory and does not have the same legal effect as OSHA standards.
OSHA is expected to release emergency temporary standards (“ETS”) based on the newly released OSHA guidelines later this spring. The ETS may include mandatory mask-wearing in the workplace as well as mandatory social distancing among other required safety precautions. The full extent of the new ETS is presently unclear.
President Biden stated in the order that ensuring the health and safety of workers is both “a national priority and a moral imperative.” “Healthcare workers and other essential workers, many of whom are people of color and immigrants have put their lives on the line during [COVID-19] pandemic… The federal government must take swift action to reduce the risk that workers may contract COVID-19 in the workplace.”
Eugene Scalia, former Secretary of Labor under the Trump Administration, did not promulgate any COVID-19 specific guidance during his tenure. He instead relied upon already existing workplace safety standards that require employers to provide a safe and healthy workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
This sparked outrage among employees and in May 2020, the American Federation of Labor and Congress of Industrial Organizations filed a petition to force OSHA to issue an ETS to respond to COVID-19; the U.S. Court of Appeals for the D.C. Circuit denied the petition the following month.
The United States is now averaging two million vaccine doses administered per day. As the spread of the virus decreases, employers are re-opening their offices so employees may once again work in the office full-time. Employers should be aware of the new guidance when considering how best to reopen their office spaces so that they may provide a safe environment for their employees. In doing so, employers avoid OSHA violations and fines, but more importantly, they contribute to workplace safety and the ultimate eradication of COVID-19.
The guidance formalizes policies employers were quick to implement at the start of the pandemic, such as routine cleaning and sanitization of workplaces, encouraging social distancing, improved ventilation, and providing cleaning supplies for good hygiene in the workplace.
The guidelines have added new measures for employers to consider, such as:
- Providing all workers with face coverings unless their work task requires a respirator;
- Providing the COVID-19 vaccine at no cost to eligible employees;
- Not distinguishing between vaccinated employees and nonvaccinated employees for purposes of implementing safety measures;
- Providing guidance, education, and training on screening and testing;
- Establishing a system for effectively communicating new workplace procedures with employees;
- Implementing an anonymous process for workers to submit concerns about potential COVID-19 hazards in the workplace; and
- Assigning a workplace coordinator responsible for COVID-19.
For more specific guidance based on industry, you can refer to OSHA’s industry-specific guidance, which is available on its webpage.
Glenn Duhl is a management-side employment and litigation lawyer at Zangari Cohn Cuthbertson Duhl & Grello P.C. Contact: (203) 786-3709; gduhl@zcclawfirm.com; www.zcclawfirm.com.
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.