On January 29, 2021, OSHA released new COVID-19 guidance in accordance with the January 21, 2021 Executive Order on Protecting Worker Health and Safety. The new guidance, entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” emphasizes the importance of implementing a COVID-19 prevention program; underscores the importance of clear communication, training, and protection from retaliation; and reminds employers of existing OSHA requirements that are applicable to COVID-19 hazards.

COVID-19 Prevention Programs

The guidance emphasizes the importance of implementing a “COVID-19 Prevention Program.” According to OSHA, an effective COVID-19 Prevention Program should be developed and implemented with the engagement of workers and workers’ representatives, and include the following elements:

1. Assignment of a workplace coordinator who will be responsible for COVID-19 workplace issues.
2. Identification of where and how workers might be exposed to COVID-19 in the workplace.
3. Identification of measures that will limit the spread of COVID-19 in the workplace, in line with the hierarchy of controls. This should include:
   1. Eliminating the hazard by separating and sending home infected or potentially infected people.
   2. Implementing physical distancing in all communal work areas,
   3. Installing barriers where physical distancing cannot be maintained.
   4. Suppressing the spread by using face coverings.
   5. Improving ventilation.
   6. Using applicable PPE.
   7. Providing supplies necessary for good hygiene practices.
   8. Performing routine cleaning and disinfection.
4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
5. A system for communicating effectively with workers and in a language they understand.
6. Education and training of workers using accessible formats and in a language they understand.
7. Instruction that workers who are infected or potentially infected should stay home and isolate or quarantine.
8. Minimization of the negative impact of quarantine and isolation of workers.
9. Isolation of workers who show symptoms at work.
10. Enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
11. Guidance on screening and testing.
12. Recording and reporting COVID-19 infections and deaths.
13. Protections from retaliation, including setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
14. Making COVID-19 vaccination available at no cost to all eligible employees
15. Not distinguishing between workers who are vaccinated and those who are not.

Communication, Training, and Protection from Retaliation

Throughout the guidance, OSHA underscores the importance of clear communication, training, and protection from retaliation. As noted above, OSHA expects communication and training to be in a format that is accessible to employees and in a language that they understand. OSHA also recommends that employers consider reasonable modifications for workers that are at high risk, ensure that absence policies are non-punitive, consider implementing paid leave policies to reduce risk, and implement measures that will prevent retaliation against employees that voice concerns, including anonymous processes for voicing concerns.

Existing OSHA Requirements

Consistent with OSHA’s prior COVID-19 guidance, this new guidance outlines the existing OSHA requirements that may be applicable to COVID-19-related hazards. These requirements include the General Duty Clause and the requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, recordkeeping and reporting, and employee access to medical and exposure records.

If OSHA moves forward with issuing an emergency temporary standard (ETS), we expect that many of the recommendations in this guidance will become part of the ETS. Under the terms of President Biden’s Executive Order, OSHA is directed to issue the ETS by March 15 if OSHA deems an ETS to be necessary.

Beveridge & Diamond’s Occupational Safety & Health practice group works alongside clients’ legal, EHS and technical teams, to help resolve critical enforcement, compliance, and regulatory issues relating to their facilities and operations. We maintain an Occupational Safety & Health Resource Center designed to help companies understand the regulatory framework for worker health and safety protection and stay educated about the federal and state developments affecting their workplaces. For more information, please contact the authors.