Guest Blog: Biden’s Assignments for OSHA Give Clues for Employers on Workplace Safety in a New COVID-19 Era

2/18/2021

Provided by Brendan Collins and Nan O’Neill of Murphy, Hesse, Toomey, & Lehane, LLP

The Biden administration’s pledge that the federal government will take a more hands-on approach to curbing new COVID-19 infections is now taking shape in various executive agencies. One such agency is the Occupational Safety and Health Administration (OSHA), which is the agency tasked with ensuring safe working conditions for American workers. The Biden administration has called on OSHA to further help identify risks of workplace exposure to COVID-19 and to determine the appropriate control measures to implement.

I. President Biden Issues Executive Order on January 21, 2021 to Protect the Health and Safety of Workers from COVID-19

In an Executive Order dated January 21, 2021, President Biden called on OSHA to perform a variety of COVID-19-prevention assignments. These assignments are helpful clues of what may be to come with regards to workplace safety requirements in relation to COVID-19.

President Biden’s assignments include the following:

The first assignment, which had a sharp two-week deadline, tasked OSHA with updating its guidance on how employers could mitigate and prevent the spread of COVID-19 in the workplace to better ensure worker safety. Our Client Alert from March 15, 2020 outlined OSHA’s previous guidance for handling COVID-19 in the workplace.
The second assignment is for OSHA to consider whether any Emergency Temporary Standards (“ETS”) on COVID-19 (for example, masks in the workplace) are necessary. Following this consideration period, and should it decide that such COVID-19 standards are necessary, OSHA is under the obligation to issue these standards by March 15, 2021.
The third assignment is for OSHA to evaluate its enforcement efforts, and to identify any short-, medium-, and long-term changes to enhance worker protection and enforcement.
The fourth assignment is for OSHA to launch a national enforcement program detailing OSHA’s enforcement efforts related to COVID-19 violations where the largest number of workers are put at serious risk or where there are violations of OSHA’s anti-retaliation principles.
The fifth assignment is for OSHA to establish a multilingual outreach campaign that engages labor unions, community organizations, and industries to more thoroughly inform workers and their representatives about workers’ rights under applicable law.

II. OSHA Issues Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace on January 29, 2021

On January 29, 2021, OSHA completed its first of President Biden’s assignments, as described in (a) above, when it published: “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (“New Guidance”). This New Guidance outlines OSHA’s recommendations for workplace safety for non-healthcare employers. While the New Guidance is clear that it is not a standard or regulation, and creates no new, enforceable legal obligations, it does provide a preview of what Emergency Temporary Standards (ETS), as referenced in (b) above, may look like should OSHA decides to release new ones in March.

A large portion of the New Guidance mirrors guidance previously issued by OSHA in March 2020. Specifically, as it did in March 2020 when it recommended development of an “Infectious Disease Preparedness and Response Plan,” OSHA maintains its emphasis on employer-driven response plans to COVID-19. The New Guidance recommends implementation of a COVID-19 “Prevention Program.” While many components of such a program are now familiar to employers, there are points of emphasis in the New Guidance employers would be wise to consider, particularly since it is likely that some or all of them may become enforceable Emergency Temporary Standards in the coming months. Such points of emphasis include:

Create and test a two-way communication system that allows workers to self-report if they are sick or have been exposed, and is a means through which employers can notify workers of exposures and closures.
Provide COVID-19 vaccine at no cost to employees.
Require workers who have been vaccinated to continue to follow protective measures, such as wearing a face covering and social distancing.
Provide face coverings at no cost to employees.
Consider using ultraviolet germicidal irradiation (UVGI) to help inactivate the COVID-19 virus, especially where increasing room ventilation is not an option.
Provide supplies necessary for good hygiene, including tissues, hand sanitizer, and no-touch trash cans, at no cost to employees.

In addition to the points listed above, the New Guidance also repeatedly emphasizes an employer’s duty to reasonably accommodate workers with disabilities under the Americans with Disabilities Act and highlights where the duty to accommodate intersects with the OSHA duty to provide a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm. Specifically,

The New Guidance recognizes that workers may have serious underlying medical conditions that place them at higher risk for severe illness from COVID-19. Such workers may be entitled to reasonable accommodation to protect them from the risk of contracting COVID-19, such as telework, or work in less densely-occupied, or better-ventilated facilities. Additionally, if the worker agrees, such an accommodation may include alternative duties that minimize contact with customers and co-workers.
The New Guidance reminds employers they must discuss the possibility of reasonable accommodation with workers who are unable to wear or have difficulty wearing face coverings due to a disability.
While OSHA standards may not require PPE in a particular industry, the New Guidance provides that some workers may have a legal right to PPE as a reasonable accommodation.

Employers should review the New Guidance, and in particular the items discussed above, to determine if any of the recommendations are feasible for their operations. Keep in mind the goal is to prevent the spread of COVID-19 in the workplace. Accordingly, employers should not wait for OSHA to issue ETS on or before March 15, 2021 but should begin now to develop a COVID-19 prevention plan tailored to their particular workplace. In many cases, an employer’s existing Infectious Disease Preparedness and Response Plan can be updated to reflect the focal points of the New Guidance.

This Client Alert was written by Brendan Collins and Nan O’Neill and reviewed by Kier Wachterhauser and Mary Ellen Sowyrda. If you have any questions regarding this Client Alert, please contact Nan O’Neill or Brendan Collins, or the attorney responsible for your account, or call (617) 479-5000. Visit https://www.mhtl.com/

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Guest Blog: Biden’s Assignments for OSHA Give Clues for Employers on Workplace Safety in a New COVID-19 Era

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