February 3, 2021
Late last week, in response to President Biden’s Executive Order on worker health and safety, the Occupational Safety and Health Administration (“OSHA”) issued new guidance to protect workers during the COVID-19 Pandemic: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. This is the first time such guidance has been issued by OSHA since the pandemic started. But it is all just guidance – not mandates. This still begs the question – will OSHA start aggressively monitoring workplaces for COVIID-19 related safety issues?
The Purpose of the New Guidance
OSHA prepared this guidance to assist employers and employees in combating COVID-19. Its primary purpose is to help identify risks of exposure and contraction of COVID-19 at work and to help identify and establish control measures to limit its spread.
The guidance is not a new regulation and it creates no “new” legal obligations on employers. Rather, it sets forth a series of recommendations and describes previously existing mandatory safety and health standards that apply to COVID-19. The recommendations are advisory and informational only.
The guidance covers the key elements for a company to create a sound COVID-19 Prevention Program. The guidance also addresses topics such as PPE usage, face coverings, hygiene practice, improving ventilation, barriers/partitions, physical distancing, isolation and quarantining (click here to review the text of the new OSHA Guidance).
It is important for employers to remember, although this new guidance in and of itself is not a new regulation, pursuant to the Occupational Safety and Health Act (“the OSH Act” or “the Act”), employers must comply with OSHA-approved safety and health standards. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Exposure to COVID-19 surely seems to fit this standard.
So what is an employer to do? Stay current with state and federal guidelines on how to work safe in a world with COVID-19. These guidelines vary based on your industry. Monitor your workplace and ensure safe practices are being followed. If in doubt, seek competent legal counsel. In such a fast-changing environment, smart, good faith efforts may help if anyone questions the safety of your workplace.
The subject matter of COVID-19 posts are often very technical. It is also an evolving area of science and law and very fact specific. Our goal here is to simply alert you to some of the key issues involved. We urge you to seek competent legal counsel before applying these ideas to your specific situation. Since March 2020, we have had a team of attorneys focusing on COVID-19 related developments and they continue to stand ready to help you with any issues involving the pandemic.
