Legally Speaking: Executive Order Prompts OSHA's COVID Workplace Safety Guidance

Submitted by Bob Dunlevey and Shawn Sorrell of Taft/Law

On January 21, President Biden signed an Executive Order directing the Secretary of Labor to issue enhanced workplace safety guidance during the pandemic, and to consider by March 15 whether any COVID related emergency temporary standards are necessary.

OSHA promptly issued detailed guidance – “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID in the Workplace” - https://www.osha.gov/coronavirus/safework. The guidance enhances significantly what is expected of employers and calls for much greater input from employees on any program developed. The guidance differs from that issued previously because it tells employers they “should” do certain things instead of just “considering” action and there is much more specificity about what should be done and how to go about it. The guidance emphasizes that workers and unions should have a significant role in the development and implementation of the safety measures. It specifies that employees should be advised of the terms of the program, suggests that employees should be told that their employer cannot retaliate against them and that an anonymous process for worker complaints should be established. The guidance will empower employees much like in a union environment.

The key recommendations to employers include:

  • Conduct a hazard assessment;

  • Identify a combination of measures that limit the spread of COVID in the workplace;

  • Adopt measures to ensure that workers who are infected or potentially infected are separated and sent home, which could include adopting flexible attendance policies;

  • Educate and train workers on COVID policies using the language they understand, including non-English languages, American Sign Language, etc.; and

  • Implement protections from retaliation for workers who raise COVID related concerns.

These recommendations appear to be the bare minimum expected by OSHA.

The guidance also explains measures that limit the spread of COVID, such as social distancing, installing barriers when necessary, enforcing mask requirements, improving ventilation, providing supplies for good hygiene, and routine cleaning and disinfection. Face mask use is addressed in much greater detail from prior guidance and includes:

  • Providing and replacing masks at no cost;

  • Discussing reasonable accommodations for workers unable to wear a mask;

  • Utilizing masks with clear coverings for employers dealing with hearing impaired workers; and

  • Replacing masks daily or frequently if they become wet or soiled.

Employers should anticipate that OSHA will promulgate a new emergency temporary standard by March 15. Therefore, take action now to do a hazard assessment and start to establish a program somewhat consistent with the guidelines. Employers may already be in compliance with some of these guidelines due to existing state and CDC directives.

Remember that OSHA’s General Duty Clause at Section 5(a)(1) is a general, catchall rule obligating employers to provide a workplace free from recognized hazards. OSHA may very well attempt to use these guidelines to bootstrap a 5(a)(1) citation arguing that the guidance represents basic actions which all employers should take. The risk of receiving a citation may be enhanced by President Biden’s previous announcement that his goal is to double the number of OSHA inspectors. Watch for any standard published in the next few months.

If you need assistance in dealing with these and other labor and employment law issues, contact Bob Dunlevey, Board Certified Specialist in Labor and Employment Law, at (937) 641-1743 at Taft/Law.

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