President Joe Biden issued an executive order on January 21, 2021, instructing, in part, the Occupational Safety and Health Administration (OSHA) to issue COVID-19 worker safety guidelines. This is the first step towards implementing national worker protections from the global pandemic. The guidelines are designed to encourage every employer to implement a COVID-19 prevention program. While these guidelines do not themselves carry the force of law, OSHA may elect to invoke the General Duty Clause of the OSH Act of 1970 to force employers to comply. In fact, any national guidance or consensus standard can be fair game for OSHA to cite under the General Duty Clause even if the guidance or standard contains language that “it does not create new legal obligations” and “the recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.” Section 5 of the OSHA Act of 1970 states:
(a) Each employer —
- (1)shall furnish to each of his employees’ employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
- (2)shall comply with occupational safety and health standards promulgated under this Act.
Section 5(a)(1) is a catch all from a regulatory enforcement perspective. If there are guidelines that help furnish “a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees,” OSHA may hold employers responsible for adopting the recommendations. COVID-19 definitely falls into this high-hazard category. Time will tell if OSHA will elect this enforcement option until a permanent solution is developed and passed through the time-consuming standards development process.
On January 29, 2021, and in response to the referenced executive order, OSHA issues “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” OSHA is careful to point out:
- Separate guidance is applicable to healthcare (CDC guidance) and emergency response (CDC guidance) settings.
- OSHA has additional industry-specific guidance.
- This guidance contains recommendations as well as descriptions of mandatory safety and health standards.
OSHA’s new COVID-19 workplace recommendations include:
(1) Suppressing the spread by using face coverings
(2) Implementation of a COVID-19 prevention program
a. Conducting a hazard assessment
b. Identifying a combination of measures that limit the spread of COVID-19
c. Adopting measures to ensure workers who are infected or potentially infected are separated and sent home
d. Implementing social distancing
e. Installing barriers where physical distancing cannot be maintained
f. Use of personal protective equipment
g. When necessary: improving ventilation, providing supplies for good hygiene, and routine cleaning and disinfection
h. Engage workers and their representatives in the program development and implementation phases
i. Assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf
ii. Identification of where and how workers might be exposed to COVID-19 at work
iii. 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
iv. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices
v. Establishment of a system for communicating effectively with workers and in a language they understand
vi. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand
vii. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine
viii. Minimize the negative impact of quarantine and isolation on workers
ix. Isolating workers who show symptoms at work
x. Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility
xi. Providing guidance on screening and testing
xii. Recording and reporting COVID-19 infections and deaths
xiii. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards
xiv. Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees
xv. Not distinguishing between workers who are vaccinated and those who are not
Employers do play a key role in the battle against COVID-19. Taking advantage of the guidance provided by the various agencies and organizations is a good way to protect employees and the business. Securing the services of an occupational safety and health professional to incorporate COVID-19 guidelines into an integrated safety and health management system is one of the best ways to lower risk and increase the probability of mission success.
J.A. Rodriguez, Jr., CSP, ASP is the Vice President, Strategic Advancement at BCSP. He can be contacted for more information about this topic here.