April 13, 2021

Volume XI, Number 103

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April 13, 2021

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April 12, 2021

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OSHA Issues Revised COVID-19 Guidance: Not Mandatory… Yet.

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published revised COVID-19 guidance to help employers identify risks and determine appropriate control measures to protect workers from COVID-19 exposure. The guidance entitled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”  “(the “Guidance”) is not mandatory, but it is likely a precursor to enforcement standards that are also under review by OSHA.

On his first full day in office, President Biden directed OSHA to issue this revised guidance within two weeks and further instructed OSHA to determine if any emergency temporary standards were necessary and if so, to issue them by March 15, 2021.  While a few states have issued emergency temporary standards (California, Michigan and Oregon), only Virginia has issued a permanent COVID-19 standard. These state standards may be used as models for any OSHA standard, particularly due to the short deadline imposed by the President.

The Guidance will be familiar to most employers as it combines previously issued suggestions from various sources: OSHA, the Centers for Disease Control and Prevention (CDC), and various orders issued by states during the course of the pandemic. However, there are several notable changes:

New/Changed Guidance

OSHA recommends that employers should:

  • Provide COVID-19 vaccines to eligible employees free of charge

  • Provide training and education to their employees about vaccines

  • Provide all employees with face coverings (cloth face coverings or surgical masks) unless a respirator is required. In the past, OSHA had not pressed employers to purchase masks for employees. It also reiterated that face coverings are not a replacement for physical distancing or other control measures such as handwashing.

  • Require individuals in the workplace to wear face coverings with limited exceptions for children under 2 years old or when eating or drinking.

Vaccines and Face Covering

The Guidance also instructs employers they should not distinguish between vaccinated workers and those who are not when complying with protective measures such as wearing face coverings or maintaining social distancing.  OSHA cites CDC’s view that there is no evidence at this time that COVID-19 vaccines prevent transmission of the virus from person-to-person.  CDC will continue to study the issue of the vaccines’ impact on transmission before making any new recommendations. This means that face coverings and physical distancing will continue to be required after vaccination until further notice.

COVID-19 Prevention Programs

The Guidance also urges employers to implement a COVID-19 workplace prevention program, which should include:

  • Assignment of a workplace coordinator.

  • Conducting a hazard assessment with employee/union involvement.

  • Identifying measures that will limit the spread of COVID-19 utilizing a hierarchy of controls, such as: barriers, physical distancing, face coverings, improving ventilation, PPE usage, and routine cleaning and disinfecting.

  • Accommodating workers at higher risk for severe illness.

  • Communication and training for employees in a language they understand.

  • Instructing employees who are infected or potentially infected to stay at home, isolate and quarantine to minimize the negative impact of quarantine and isolation on other employees.

  • Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the workplace.

  • Providing anonymous complaint protocols to protect employees from retaliation for reporting COVID-19 concerns.

While this Guidance is not enforceable, it provides significant insight into the Biden Administration’s current thinking about safety in the workplace during the pandemic.  Employers should review their existing COVID-19 safety programs and use this new Guidance as a roadmap to ensure their prevention program will meet OSHA’s new expectations.

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©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 35
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About this Author

Robert J. O’Hara Labor and employment lawyer Epstein Becker
Member of the Firm

ROBERT J. O’HARA* is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. His practice focuses on employment law counseling and litigation as well as human resources counseling, compliance, and training.

Mr. O’Hara’s experience includes:

  • Conducting and overseeing workplace investigations (including sexual harassment, bribery, the Foreign Corrupt Practices Act, product quality, supply chain theft, and malfeasance of every kind), executive terminations, and...
212-351-3708
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