Updated OSHA COVID-19 Protocols

President Biden vowed to take control of the COVID-19 pandemic in his first 100 days in office, and one of the first Executive Orders that he signed, an order entitled Protecting Worker Health and Safety, aims to achieve just this. The Executive Order directed the Secretary of Labor to issue revised guidance on workplace safety within two weeks, and also directed the Secretary of Labor to review the Occupational Safety and Health Administration’s (OSHA) enforcement efforts to improve the agency’s practices. As a result of this order, on January 29, 2021, OSHA issued updated COVID-19 protocol. 

The updated guidance reiterates many of the existing OSHA and Centers for Disease Control and Prevention (CDC) recommendations, but there are some new recommendations of which employers should take note. Employers should also prepare for a stronger effort to respond to complaints related to COVID-19, and should anticipate a much more active OSHA in the coming months and years.

Mask Protocol

For the first time, this guidance recognizes and states that wearing a mask or other face covering may, in certain circumstances, reduce the risk of employee infection, not just transmission, of COVID-19.

COVID-19 Prevention Program

OSHA recommends employers establish a comprehensive written COVID-19 prevention program that includes:

• Assigning a workplace coordinator responsible for COVID-19 issues on behalf of the employer.
• Conducting a hazard assessment regarding where and how employees are most likely to risk COVID-19 exposure and solicit employee, or employee representative (e.g. union), feedback, as they are most likely to be familiar with their working conditions.
• Consideration of supportive policies and practices that provide protections for employees who are at higher risk of contracting COVID-19, including older adults and employees of any age with serious underlying medical conditions. Employers are reminded that employees with disabilities may be entitled to reasonable accommodations that protect them from contracting COVID-19, and employers are encouraged to consider reasonable modifications for high-risk employees. Employers are also reminded that they should not exclude any employee from work on the basis of age.
• Identifying control measures to limit the spread of COVID-19 including hazard elimination (e.g. sending infected or potentially infected employees home); adopting engineering controls and administrative policies; distributing and using appropriate personal protective equipment (PPE); encouraging social distancing in all communal work areas; installing barriers where physical distancing cannot be maintained; improving ventilation of workspaces; performing routine, enhanced cleaning and disinfection; providing the supplies necessary for good hygiene practices; and requiring the use of appropriate face coverings in the workplace.
• Making policies accessible to all employees either through training or establishing a system for effective communication, and ensuring that communication is accessible and provided in a language and format that employees understand.
• Reinforcing the need for employees who are infected or partially infected to stay home and isolate or quarantine in compliance with current CDC guidelines, and ensuring that absence policies are non-punitive and do not encourage sick employees to come to work. Employers are encouraged to minimize the impact of quarantine on employees by allowing them to telework or to work, isolated, on site, if possible. Employers are also encouraged to allow access to paid sick leave, if available, or to consider implementing paid sick leave policies. In support of this recommendation, OSHA reminds employers that the FFCRA was extended for optional coverage through March 31, 2021, which provides a 100% reimbursement for paid sick leave provided to employees for specified reasons related to COVID-19.
• Implementing an anonymous complaint process through which employees may voice concerns about COVID-19 hazards or safety compliance.
• Training employees on the safety, efficacy, and benefits of receiving the COVID-19 vaccine and consider whether to provide the vaccine or vaccine series at no cost to eligible employees.
• Holding vaccinated employees to the same safety standards as non-vaccinated employees, including requiring them to observe social distancing and PPE protocol.

Additional Guidance on Limiting the Spread of COVID-19 in the Workplace

OSHA provides expanded detail on some of its recommendations for COVID-19 prevention protocol. Employers are encouraged to review these recommendations and consider ways to implement them into their workplaces, as practical.

Quarantine and Isolation: OSHA recommends that employees who test positive for, have been exposed to, or likely have been exposed to, COVID-19 should be isolated from other employees until they meet the CDC Guidelines for Exiting Isolation.

Physical Distancing in Communal Areas: OSHA recommends that employers limit the number of people in communal spaces by implementing flexible schedules or telework; implementing flexible work hours by rotating or staggering shifts to limit the number of employees at the workplace; delivering services remotely; and implementing flexible meeting and travel options. OSHA also recommends altering work spaces to increase physical space between employees and with customers, if any, to at least 6 feet; closing or limiting access to common areas; offering vulnerable employees duties that limit their contact with other employees or customers; and if work tasks do not allow for adequate social distancing, checking for OSHA industry-specific guidance on keeping employees safe at work. 

Barriers in the Workplace: If employees utilize fixed workstations that do not allow them to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g. plexiglass, flexible strip curtains, etc.) should be installed to separate employees from each other or customers, if any. The barriers should block face-to-face contact between individuals in order to prevent direct transmission of respiratory droplets, and the design and installation of the barriers should consider whether the employee primarily sits or stands and address that posture. If openings in the barrier are necessary to allow for the transfer of items, the opening should be as small as possible. OSHA also notes that barriers should not replace social distancing, and to the extent feasible, employees should still remain 6 feet apart from each other and customers, if any.

Ventilation: OSHA suggests that employers consider ways in which they can improve ventilation of workspaces, and recommends that employers review the CDC guidance on Ventilation in Buildings and by ASHRAE on Building Operations During the COVID-19 Pandemic, which include: ensuring that ventilation systems operate properly; increasing ventilation rates; increasing fresh outdoor air by opening windows and doors and the use of window fans, if weather appropriate; disabling demand-controlled ventilation; ensuring restroom exhaust fans are functional; maintaining local exhaust ventilation in kitchens and cooking areas; reducing or eliminating recirculation; keeping systems running longer hours; improving central air filtration to the MERV-13 or the highest compatible with the filter rack; checking filters to ensure they are within service life and appropriately installed; and if ventilation cannot be increased, reducing occupancy level in the building.

Cleaning: OSHA suggests that employers adopt more routine expanded cleaning protocol, and specifically recommends that employers follow the CDC guidance on Cleaning and Disinfecting.

Hygiene: OSHA has indicated that employers should provide tissues, no-touch trash cans and no-touch hand-sanitizer dispensers in multiple locations around the workplace; encourage employees to frequently wash their hands with soap and water (for at least 20 seconds) or use alcohol-based hand sanitizer that is at least 60% ethanol or 70% isopropanol; place posters encouraging good hand hygiene and physical distancing in and around the workplace, including in languages other than English, as needed; and provide supplies necessary for good hygiene at no cost to the employees.

PPE: Employers should determine what, if any, PPE is necessary to protect employees and should provide all necessary PPE to employees at no cost, including respirators; face shields; gloves; and surgical masks. Even if PPE is not required to protect employees, employers should be aware that some employees may be entitled to PPE as a reasonable accommodation, or some employees may want to wear PPE as a result of personal concerns about their safety. Employers are encouraged to support the voluntary use of PPE.

Face Coverings: Employers are encouraged to provide their employees with face coverings made of at least two layers of a tightly woven, breathable material with no valves or vents, that fit snugly over the nose, mouth and chin with no large gaps on the outside of the face. Employers should consider providing these face coverings at no cost to employees and should be prepared to discuss reasonable accommodations for employees who may not be able to wear, or have difficulty wearing, a face covering due to a disability. OSHA further recommends that employers with deaf or hearing deficit employees should consider acquiring masks with clear coverings over the mouth to facilitate lip reading. Additionally, employers are encouraged to review the updated CDC guidance on mask fitting and wearing best practices, including the CDC study demonstrating the efficacy of double-masking.

COVID-19 Testing

Employees who have tested positive for and recovered from COVID-19 may continue to test positive for three months or longer, even when they are no longer contagious. As a result, OSHA now indicates that employees who have recovered from COVID-19, should only be re-tested within three months of their recovery if they develop new symptoms, especially if they were in close contact with another individual who tested positive for COVID-19 in the last 14 days. 

Potential Emergency Temporary Standards

President Biden’s Executive Order also directed OSHA to consider and implement any necessary Emergency Temporary Standards (ETS) on COVID-19. To date, no ETS has been issued by OSHA, but the agency has until Monday March 15, 2021 to issue any such ETS.

It is unclear whether OSHA will issue any such ETS, but if it any is issued it is likely to follow protocol already issued by states with emergency standards in place (i.e. California, Michigan, Oregon, and Virginia). To anticipate what a federal standard may include, employers may choose to review these states’ COVID-19 standards and determine whether any of the requirements and recommendations can be implemented in their workplaces.

Other OSHA Updates

In addition to the updated COVID-19 guidance, OSHA is poised to play a large role in President Biden’s administration, and employers may see an increase in OSHA investigations and enforcement actions. President Biden is expected to follow a path similar to President Obama, which means an emphasis on enforcement over compliance assistance. Employers may have grown accustomed to a more relaxed OSHA under the Trump administration, but they should prepare for a more active and diligent OSHA over the next four years. This expectation is also fortified by the nomination of Marty Walsh as the Secretary of Labor. Secretary-Designate Walsh has strong union ties, and his labor background and connections are expected to bring additional worker protections and favorability to OSHA’s agency agenda.

Given the potential for a reinvigorated OSHA, employers should revisit their workplace safety policies and prepare for an OSHA that is focused on enforcement of workplace safety rules and regulations, including a heightened potential for investigations and penalties.

Employer Next Steps

While this guidance is not an enforceable standard or a regulation creating new affirmative obligations for compliance, employers should consider reviewing the recommendations and consider implementing any and all measures that are feasible in their workplace. This is especially true given the fact that this guidance is likely to serve as the footprint for any Emergency Temporary Standards that OSHA deems necessary to improve workplace safety during the COVID-19 pandemic. Practical next steps that employers may consider are:

• Review any applicable state guidance for more stringent requirements or guidelines;
• Review and revisit existing COVID-19 protocol and consider adopting more vigorous or updated COVID-19 safety protocol in line with OSHA’s recommendations for comprehensive, written COVID-19 safety protocol.
• Consider offering a COVID-19 vaccine at no cost to all eligible employees, and provide information and training to employees on the benefits and safety of vaccinations.
• Ensure that vaccinated and non-vaccinated employees continue to follow protective measures, such as wearing a face covering at work and observing social distancing guidelines.
• Implement an anonymous employee reporting avenue like a hotline or some other method for employees to voice concerns anonymously about COVID-19 hazards and safety.
•  Consider reviewing the emergency standards adopted in California, Michigan, Oregon, and Virginia and determining what, if any, recommendations and requirements issued in these states may be adopted.
• Revisit workplace safety policies, including protocol and policies surrounding reporting of industrial accidents and workplace violence.