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:

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:

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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National Law Review, Volumess XI, Number 35