June 15, 2021 Update. On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). Among other things, the updated Guidance provides that, unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. Our blog post on the updated guidance is available here.
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On January 29, 2021, OSHA issued guidance to employers and workers in most workplace settings (excluding healthcare) to help them (1) identify risks of being exposed to and/or contracting COVID-19 at work, and (2) determine appropriate control measures to implement the Guidance. The Guidance has been issued for “planning purposes” and “is not a standard or regulation, and it creates no new legal obligations.” The Guidance contains recommendations and descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, and are intended to assist employers in providing and abating hazards (potentially including workers that may have COVID-19) likely to cause death or serious physical harm as part of their obligation to provide a safe and healthy workplace.
This Guidance was issued in response to an executive order issued by President Biden on January 21, 2021, ordering OSHA to issue new science-based guidance to protect workers and enhance workplace health and safety during the COVID-19 pandemic.
Our blog post on OSHA’s Enforcement Guidance on Reporting COVID-19 Cases is available here, and our blog post on OSHA’s General Guidance on Returning to Work is available here. Our memorandum to clients regarding the U.S. Department of Labor’s Workplace Guidelines for Coronavirus Outbreak, Including Specific Guidance on FMLA, FLSA and FECA is available here.
A detailed discussion of the Guidance follows.
What Workers Need to Know about COVID-19 Protections in the Workplace. The Guidance provides the following information for workers:
COVID-19 Prevention Program. The Guidance states that under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. The Guidance then provides: “Implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.”
The Guidance states that the most effective COVID-19 prevention programs include the following elements:
In addition, a best practice is to create and test two-way communication systems that workers can use to self-report if they are sick or have been exposed, and that employers can use to notify workers of exposures and closures, respectively.
In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free of retaliation. This information should also be provided in a language that workers understand. Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.
Once the area has been appropriately disinfected, it can be opened for use. Workers without close contact with the potentially infected person can return to the area immediately after disinfection.
If it is more than seven days since the infected person visited or used the facility, additional cleaning and disinfection is not necessary. Continue routine cleaning and disinfection, described below.
Performing screening or health checks is not a replacement for other protective measures such as face coverings and physical distancing. Asymptomatic individuals or individuals with mild non-specific symptoms may not realize they are infected and may not be detected during through screening.
In addition, employers should be aware that reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer or OSHA would constitute a violation of the OSH Act. 29 C.F.R. 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.
In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities; also consider using a hotline or other method for workers to voice concerns anonymously.
Additional Detail on Key Measures for Limiting the Spread. The Guidance provides additional information for employers on how to control the spread of COVID-19 in the workplace:
Eliminate the Hazard by Separating and Sending Home Infected or Potentially Infected People from the Workplace. One key element involves eliminating the hazard, which means isolating workers who are infected or potentially infected so they cannot infect other workers. Most employers will follow a symptom-based strategy for identifying and separating and sending home workers. However, there are certain circumstances where employers may consider a COVID-19 test-based strategy.
Implement Physical Distancing in All Communal Work Areas. The best way to protect individuals is to stay far enough away so as not to breathe in particles produced by an infected person—generally at least 6 feet—although this is not a guarantee of safety, especially in enclosed spaces or spaces with poor ventilation.
Install Barriers Where Physical Distancing Cannot Be Maintained. At fixed workstations where workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., Plexiglas, flexible strip curtains) should be installed to separate workers from other people.
Suppress the Spread of the Hazard Using Face Coverings. Provide all workers with face coverings (i.e., cloth face coverings, surgical masks), unless their work task requires a respirator. Employers should provide face coverings to the workers at no cost. Employers must discuss the possibility of reasonable accommodations under the ADA for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability. In workplaces with employees who are deaf or have hearing deficits, employers should consider acquiring masks with clear coverings over the mouth for all workers to facilitate lip-reading.
Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.
Require any other individuals at the workplace (e.g., visitors, customers, non-employees) to wear a face covering unless they are under the age of two or are actively consuming food or beverages on site.
Improve Ventilation. The CDC has released guidance about ways to improve ventilation and prevent the spread of COVID-19 in buildings. The OSHA Guidance also refers employers to information published by ASHRAE regarding Guidance for Building Operations During the COVID-19 Pandemic. Use Personal Protective Equipment When Necessary. When the measures described above cannot be implemented or do not protect workers fully, OSHA standards require employers to provide PPE to supplement other controls.
Provide the Supplies Necessary for Good Hygiene Practices. The Guidance states that employers should ensure that workers, customers, and visitors have supplies to clean their hands frequently and cover their coughs and sneezes:
Perform Routine Cleaning and Disinfection. The Guidance states that employers should follow the CDC Guidance for Cleaning and Disinfecting to develop, implement, and maintain a plan to perform regular cleanings to reduce the risk of exposure to COVID-19.
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