Executive Order and OSHA Guidance Mean Employers Should Prepare for Tougher COVID-19 Enforcement

On his first full day in office, President Joe Biden issued an Executive Order, Protecting Worker Health and Safety, which directs the Occupational Safety and Health Administration (OSHA) to take additional measures related to protecting workers from COVID-19. Referring to the health and safety of workers as a national priority and moral imperative, the Executive Order calls for OSHA to issue revised guidance to employers on workplace safety during the COVID-19 pandemic, consider whether an emergency temporary standard on COVID-19 is necessary, review current OSHA enforcement efforts related to COVID-19, and launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk.

Pursuant to the Executive Order, OSHA issued revised guidance to employers on January 29.  The guidance is designed to help employers and workers in most workplace settings outside of healthcare.  OSHA has issued separate guidance for healthcare and emergency response settings, and the revised guidance links to industry-specific recommendations, including agriculture, construction, manufacturing, and meat and poultry processing.

The revised guidance contains recommendations that are, for now, advisory in nature and intended to assist employers in providing a safe and healthful workplace. Most employers are likely familiar with, or have already implemented, many of the recommended key measures, which include:

  • Separating and sending home infected or potentially infected people from the workplace;
  • Implementing physical distancing;
  • Installing barriers where physical distancing cannot be maintained;
  • Requiring the use of face coverings;
  • Improving ventilation;
  • Using personal protective equipment (PPE) where necessary;
  • Providing supplies for good hygiene practices; and
  • Performing routine cleaning and disinfection.

In addition, the revised guidance urges employers to implement a workplace COVID-19 prevention program, stating that this is the most effective way to mitigate the spread at work. OSHA details 16 elements that should be included in an effective COVID-19 prevention program. These elements include:

  • Assignment of a workplace coordinator;
  • Identification of where and how workers might be exposed to COVID-19 at work;
  • Identification of measures that will limit the spread of COVID-19 in the workplace, in line with the principles of the hierarchy of controls;
  • Consideration of protections for workers at higher risk for severe illness;
  • Establishment of a system for communicating effectively with workers in a language they understand;
  • Educating and training workers on the employer’s COVID-19 policies and procedures using accessible formats and a language they understand;
  • Instructing workers who are infected or potentially infected to stay home and isolate or quarantine;
  • Minimizing the negative impact of quarantine and isolation on workers;
  • Isolating workers who show symptoms at work;
  • Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility;
  • Providing guidance on screening and testing;
  • Recording and reporting COVID-19 infections and deaths;
  • Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards;
  • Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees;
  • Not distinguishing between workers who are vaccinated and those who are not; and
  • Referencing other applicable OSHA standards.

OSHA specifically states that the guidance is not a standard or regulation and creates no new legal obligation.  While some states with OSHA-approved state plans have issued emergency temporary or permanent standards, federal OSHA does not currently have a COVID-19 standard to enforce.  However, the agency can issue citations for COVID-19 hazards by using other established standards or Section 5(a)(1) of the Occupational Safety and Health Act, known as the General Duty Clause, which requires employers to provide their workers with a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm.

In fact, since April 2020, OSHA has conducted over 300 inspections that have resulted in COVID-19-related citations, with proposed penalties totaling $4,034,288. The citations primarily allege violations of OSHA’s PPE, respiratory protection, recordkeeping, and reporting standards, and the General Duty Clause.  These numbers do not include COVID-19-related citations issued by state-run plans.

In light of the Executive Order, employers must be prepared for enhanced federal OSHA enforcement efforts. The national program required by the Executive Order would likely take the form of a National Emphasis Program (NEP), which focuses OSHA’s enforcement resources on particular hazards and high-hazard industries. Additionally, OSHA is expected to issue a COVID-19 emergency temporary standard (ETS) by the March 15 deadline established in the Executive Order. Any ETS will likely contain many, if not all, of the health and safety measures covered by the revised guidance, including a requirement for employers to develop and implement a COVID-19 prevention program.

Employers are encouraged to review and follow the recommendations outlined in OSHA’s revised COVID-19 guidance. By implementing these protective measures, employers will not only help to control the spread of COVID-19 in the workplace, but they will also put themselves in a better position to comply with the requirements of the anticipated ETS and be more prepared for OSHA’s increased, targeted enforcement efforts.

For more information, please contact Russell P. Bailey at [email protected] or 501-377-0387.