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