Executive Summary: On January 29, 2021, the Occupational Safety and Health Administration (OSHA) issued stronger, more detailed guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Previously, on January 21, 2021, President Biden issued an Executive Order calling for OSHA to issue revised guidance by early February 2021. The Executive Order also directed OSHA to consider whether emergency temporary standards are necessary, and if so, to issue an emergency rule by March 15, 2021.

Background
Throughout the Pandemic, OSHA has issued guidance to employers concerning their regulatory obligations to keep workplaces safe and prevent the spread of COVID-19. Previously, in March 2020 OSHA issued Guidance on Preparing Workplaces for COVID-19, which included an Occupational Risk Pyramid to help employers determine worker risk for occupational exposure to COVID-19. Additionally, on April 13, 2020, OSHA issued a memorandum, setting forth its Interim Enforcement Response Plan for Coronavirus Disease 2019. This Interim Enforcement Response Plan, aimed at guiding OSHA field offices and inspectors “provide[d] instructions and guidance” to OSHA Regional Administrators and State Plan Designees on how to investigate potential COVID-19 hazards.

OSHA’s previous guidance did not create a new occupational safety standard for COVID-19. Instead, it was drafted to allow for “flexibility and discretion” so that OSHA personnel can enforce existing occupational safety and health standards amidst changing conditions. Additionally, the Interim Enforcement Response Plan prioritized guidance for healthcare and emergency response sectors, directing that any complaints outside of these industries (and with medium to lower exposure risk) will not normally result in an on-site inspection and should be processed with the lower-priority, non-formal procedures.

The New Guidance
The new guidance, issued January 29, 2021, includes stronger, more detailed guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, https://www.osha.gov/coronavirus/safework. This is the first time OSHA has revised its general workplace COVID-19 guidance since March 2020.

This new guidance is intended for most workplaces outside of healthcare. Separate guidance is applicable to healthcare and emergency response settings (Centers for Disease Control “CDC guidance). The Guidance makes clear that it creates no new legal obligations and is not a standard or regulation. It states employers should implement COVID-19 prevention programs and should include: “conducting a hazard assessment; identifying a combination of measures that limit the spread of COVID-19 in the workplace; adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace; and implementing protections from retaliation for workers who have COVID-19 related concerns.”

The elements of the recommended COVID-19 prevention program include:

1. Assignment of a workplace coordinator.
2. Identification of where and how workers might be exposed to COVID-19 at work.
3. Identification of a combination of measures that will limit the spread of COVID-19 in the workplace, in line with the principles of the hierarchy of controls.
4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
5. Establishment of a system for communicating effectively with workers and in a language they understand.
6. Educating and training workers on COVID-19 policies and procedures using accessible formats and in a language they understand.
7. Instructing workers who are infected or potentially infected to stay home and isolate or quarantine.
8. Minimizing the negative impact of quarantine and isolation of workers.
9. Isolating workers who show symptoms at work.
10. Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
11. Providing guidance on screening and testing.
12.  Recording and reporting COVID-19 infections and deaths as required by the OSHA Act and health departments.
13. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
14. Making a COVID-19 vaccine or vaccinations series available at no cost to eligible employees.
15. Not distinguishing between workers who are vaccinated and those who are not. Workers who are vaccinated must continue to follow protective measures because at this time there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.
16. Compliance with all applicable OSHA standards.

Employer Considerations
While new guidance is only advisor in nature, it is intended to provide clarity and direction to help businesses comply with OSHA requirements and implement workplace safety protocols. Moreover, the new guidance allows employers to reassess their current policies and procedures to ensure compliance with this additional detail. The new guidance is likely the first step toward increasingly detailed and possibly mandatory requirements at the federal and state level to address COVID-19 safety protocol in the workplace. Similarly, concerns have risen regarding whether more stringent COVID-19 standards could result in citations being used as evidence of employer wrongdoing in personal injury or workers’ compensation claims.

Virginia’s COVID Workplace Requirements
A number of states with their own workplace safety agencies already have enacted mandatory COVID-19 protection rules, including California, Michigan and Virginia. Previously, on January 13, 2021, the Virginia Safety and Health Codes Board approved a measure to implement COVID-19 safety measures permanently, making Virginia the first state to do so on a permanent basis. These permanent COVID-19 safety measures are enforced by the Virginia Occupational Safety and Health Program (VOSH). For more information on Virginian’s permanent workplace safety rules, please see FordHarrison’s January 15, 2021 Legal Alert.

These permanent measures were enacted by Governor Ralph Northam in the absence of federal guidance by OSHA. While OSHA’s new guidance largely mirrors Virginia’s permanent COVID-19 safety measures, it remains to be seen what additional guidelines OSHA may enact under the Biden Administration as vaccine-related issues arise in the workplace.

Employers should continue to monitor and follow OSHA and VOSH guidance related to COVID-19. VOSH’s general duty clause requires employers to provide their workers with a workplace free from recognized hazard that are causing or likely to cause death or serious physical harm. Moreover, in conducting investigations involving COVID-19, OSHA has considered an employer’s good faith efforts to comply with safety and health standards and guidance when determining whether it cites a violation. Therefore, it is recommended that employers continue to monitor and develop measures to comply with evolving guidance at the federal and state level.

If you have questions regarding OSHA’s new guidance or Virginia’s permanent COVID-19 safety measures, please contact John G. Kruchko, partner in our Tysons Corner, Virginia office or Max Bernas as associate in our Washington, DC and Tysons Corner, Virginia offices.

© 2020 FordHarrison LLP

John G. Kruchko is a partner with the Labor & Employment Law First of FordHarrison LLP in Tysons Corner, VA; Max Bernas is an associate in the firm’s Tysons Corner, VA and Washington, DC offices. Frederick L. Warren, a partner in the firm’s Atlanta, GA office, prepared an original version of this article. For more information, please contact Mr. Kruchko or Mr. Bernas at (202)719-2048 or by email at jkruchko@fordharrison.com or kmbernas@fordharrison.com. This article is published for general information purposed and does not constitute legal advice.