As OSHA and the Department of Labor consider whether to issue a COVID-19 emergency temporary standard (“ETS”) for workplaces, many states have already issued their own versions of pandemic workplace rules. They range in style and substance, and federal OSHA has said that it is reviewing the existing state ETS requirements as it looks at what types of provisions to include in any national mandates.
Of course, if and when OSHA issues an ETS, states with state OSHA plans will have to revisit any rules they have in place to ensure that the state rules are at least protective as the federal requirements. In the meantime, employers should be aware of state-based COVID rules and stay tuned for any updates.
To assist, we’ve collected and summarized an assortment of some of these state requirements below. These include both regulatory standards, whether temporary or permanent, as well as requirements imposed through executive orders.
State COVID-19 workplace safety rules or standards
Cal OSHA Temporary Emergency Standards (effective 11/31/2020)
- Create a written COVID-19 prevention plan.
- Provide notice of exposures and testing of exposed employees.
- Follow return-to-work criteria.
- Provide masks to employees and training on safety measures.
- Follow expanded protocols during an outbreak in the workplace.
MIOSH Emergency Rules – COVID-19 (effective 10-14-2020)
- Create a written COVID-19 plan.
- Designate one or more safety coordinators.
- Follow return-to-work criteria.
- Require employees to work remotely.
- Require mask wearing.
Temporary Rule and Appendix Addressing COVID-19 (effective 11-16-2020)
- Conduct and record an exposure risk assessment and infection control plan by 12-7-20.
- Require and provide masks, face covering or face shields and physical distancing.
- Provide employee training about COVID-19 by 12-21-20.
- Optimize ventilation through HVAC systems by 1-6-21.
- Develop a COVID notification process for exposed employees.
- Provides additional requirements for workplaces “at exceptional risk.”
Safe Activities by Covered Activities During COVID-19 Emergency (effective 11-9-20)
- Provide face coverings for employees.
- Develop written plan for safe operation during COVID-19.
- Implement screening procedures for all individuals entering the business.
- Post signage regarding compliance with mitigation measures.
- Cooperate with the Department of Health to mitigate the spread of COVID-19 in the event of a “hot spot.”
Final Permanent Standard COVID-19/Permanent Standard for Infectious Disease (effective 1/27/21)
- Conduct a risk assessment for COVID-19 exposures at the workplace and at individual task levels with Virginia risk level classifications.
- Develop an infectious disease preparedness and response plan for very high, high, and medium (if 11+ employees) workplaces. Designate a person responsible for implementing the plan.
- Develop reporting policies and procedures for employees experiencing COVID-19 symptoms when no alternative diagnosis has been made.
- Establish a record-keeping and notification system for positive test results of employees, subcontractors, contractors, and temps per the final standard.
- Report outbreaks to the Virginia Department of Health when 2+ cases occur among your own employees present at work within a 14-day period of testing positive.
- Appropriately exclude employees known or suspected to be infected. Implement return-to-work policies and procedures under the final standard.
- Adopt mitigation measures.
- Provide training as defined in the standard to all employees at workplaces regardless of individual employee risk levels if the employer’s workplace includes tasks or hazards classified as very high, high, or medium level of exposure risk. Employers with hazards or job tasks classified at a low exposure risk level must provide written information to employees as defined in the standard.
State executive orders and guidelines with mandates
Executive Orders 2020-73 and 2020-74 (effective 6-26-2020)
- Require face masks or cloth coverings when unable to social distance.
- Encourage remote work, if feasible.
- Require social distancing and PPE as preventive measures.
- Post guidance regarding workplace safety from IDPH and the Office of the Illinois Attorney General.
Healthy at Work Minimum Requirements for All Entities. (effective 7-10-2020)
- Create a testing plan for testing of employees with symptoms of infection.
- Designate a “Healthy at Work” officer.
- Educate and train employees.
- Conduct daily temperature/health checks, comply with universal face covering requirements.
Mandatory Safety Standards for Workplaces (effective 11-5-2020)
- Provide training for workers regarding COVID-19 safety measures.
- Establish a return-to-work plan.
- Ensure employees comply with state-issued rules regarding out-of-state travel.
- Comply with social distancing, hygiene, disinfecting protocols, and sector-specific guidance.
Executive Order 21-01, 20-81 (effective 1-10-21)
- Establish a COVID-19 Preparedness Plan.
- Comply with mandatory face covering requirements.
- Adhere to industry-specific requirements.
- Comply with sign posting requirements.
- Employ reasonable efforts to enforce the Executive Order with respect to customers and visitors.
COVID-19 Reopening Guidance (effective 12-9-20 – updated)
- Bar employees with COVID-19 symptoms, exposure or infection from the workplace and activity areas.
- Develop and implement screening processes for employees prior to entering the workplace.
- Implement disinfection and work process modifications.
- Appoint a safety officer responsible for monitoring and improving compliance with safety and prevention measures.
- Communicate employer expectations regarding mitigation measures.
- Ensure compliance with guidelines on face coverings, hygiene practices, stay at home policies, and COVID-19 testing.
Executive Order 192 (effective 11-05-2020
- Comply with sanitation, disinfection, social distancing, screening safety measures and exclusion protocols for infected workers.
- Provide face masks and adhere to mask mandates.
- Comply with state sick and family leave laws.
- Implement notification procedures for exposed workers.
Order of the Secretary of the Pennsylvania Department of Health (effective 4-15-20)
- Comply with restrictions on out-of-state travel.
- Provide PPE.
- Comply with safety measures including adherence to occupancy limits and mask mandates, implementation of a plan for addressing exposures in the workplace, adoption of disinfection procedures, and limitations on working group size.
Addendum 11 to Executive Order 01-20, Agency of Commerce and Community Development Guidelines (ACCD)
Return to Work Guidance dated 12-17-20 (effective 4-24-2020)
- Implement physical distancing, health and sanitation measures in accordance with the Vermont Department of Health, CDC and ACCD guidelines.
- Conduct employee screenings.
- Designate a health officer at every shift to ensure compliance with executives and ACCD guidance.
- Conduct mandatory training of employees in compliance with standard operating procedures developed by the Vermont OSHA (VOSH) and the Vermont Department of Health.
- Employers are encouraged to follow return-to-work guidance developed by the Vermont Department of Health.
Executive Order 20-25.8, Department of Labor and Industries Workplace Safety and Health Requirements
Agricultural COVID-19 Requirements and Interpretive guidance (effective dates: 11-15-2020, 08-19-2020)
- Comply with all conditions for operation required by the Department of Labor & Industries, including interpretive guidance, regulations, rules and administered statutes.
- Cooperate with public health authorities in the investigation of COVID-19 exposures and infections.
- Follow all mandatory guidelines for businesses and activities.
- Prepare a COVID-19 Response Plan for worksites and work-related functions applicable to agricultural employees.
- Provide training to employees about COVID-19 transmission and workplace policies.
- Provide masks and appropriate PPE.
Comply with state and federal requirements with a customized COVID-19 prevention policy
The list above is just a summary. Every employer should consult its state rules carefully to ensure compliance. One thing most requirements – and federal guidance – have in common is a requirement to assess workplace risks and exposures and to create a plan.
To help you do so quickly and affordably, Husch Blackwell has continued to update its tool for creating COVID-19 prevention & return-to-work policies. The tool – working with a Husch Blackwell attorney – builds a customized policy for your workplace(s) for a reasonable flat fee. It includes both federal and state requirements to be sure your plan works to keep people healthy and to minimize the risk of liability. Check out a demo or try out to the tool here.
For answers to your COVID-19 workplace questions or assistance with plans and policies, please contact your Husch Blackwell attorney or a member of our team: Jenna Brofsky, Erik Dullea, Brian Hendrix, or Donna Pryor.
Tracey Oakes O’Brien, Legal Content and Knowledge Manager, is a co-author of this content.