On January 29, 2021, OSHA posted new guidance on mitigating and preventing the spread of COVID-19 in the workplace. The latest OSHA guidance standardizes a new name for employer policies: “COVID-19 Prevention Program.” In the guidance, OSHA states employers should implement COVID-19 Prevention Programs in the workplace. Per the agency, the most effective programs engage workers and their union or other representatives in the program’s development and include the following key elements: 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 raise COVID-19 related concerns.
The guidance provides additional details on key measures for limiting the spread of COVID-19, starting with separating and sending home infected or potentially infected people from the workplace, implementing physical distancing, installing barriers where physical distancing cannot be maintained, and suppressing the spread by using face coverings. It also provides guidance on the use of personal protective equipment (PPE), when necessary, improving ventilation, providing supplies for good hygiene, and routine cleaning and disinfection. Additionally, the guidance recommends that employers do not distinguish between workers who are vaccinated and those who are not because there is no evidence that the COVID-19 vaccines prevent transmission of the virus from person-to-person.
OSHA will continue to update this guidance over time.
Per the OSHA post, this guidance is not a standard or regulation, and it creates no new legal obligations. The guidance states the recommendations are advisory in nature, informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace. However, the guidance also states that pursuant to the Occupational Safety and Health Act, employers must comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. Additionally, 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. This suggests these recommendations could be enforced via the General Duty Clause.
On the OSHA Stakeholder’s call on January 29, 2021, agency representatives stated this revised guidance is just the first step. OSHA is also considering implementing an Emergency Temporary Standard to mitigate and prevent the spread of COVID-19 in the workplace. When asked about the main difference between this new guidance and past OSHA guidance, an agency representative stated the main differences are in “tone” and the suggestion that employers involve workers in developing a plan.