On January 20, 2021, the United States Occupational Safety and Health Administration (U.S. OSHA) issued new guidance on how employers can maintain safe and healthy workplaces to protect employees from COVID-19, including a comprehensive list of prevention program contents. Although not expressly a “safe harbor,” the U.S. OSHA guidance is useful as employers have increasing numbers of employees at work or returning to the workplace. Additionally, employer compliance with the OSHA prevention program will provide employees assurance regarding safety and may assist employers in employee claims relating to workplace COVID-19 exposure.
This federal guidance is in addition to the mandatory provisions in the Oregon Occupational Safety and Health Administration’s (OR-OSHA) temporary rules (and new proposed permanent rules) relating to COVID-19, and in addition to the Washington State Department of Labor & Industries Division of Occupational Safety and Health (L&I DOSH) regulations relating to COVID-19, and also in addition to federal Centers for Disease Control (CDC) guidelines.
U.S. OSHA’s new guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
,” outlines steps to create and maintain a safe and healthy workplace during COVID-19 and provides a concrete list of COVID-19 prevention program elements. Employers with on-site workers, or those contemplating having workers return, should review these elements for compliance:
- Assigning a workplace COVID-19 coordinator.
- Identifying where and how workers might be exposed to COVID-19 at work using a thorough hazard assessment for each worksite.
- Identifying measures to limit the spread of COVID-19 at work using a hierarchy of controls.
- Considering protection for workers at higher risk for severe illness, such as older or disabled workers (but remain compliant with applicable employment laws such as ADA, ADEA, HIPAA, etc.).
- Establishing an effective worker communication system, including multi-lingual signs and other special communication needs.
- Educating workers on COVID-19 policies and procedures, including multi-lingual signs and other special communication needs.
- Instructing infected/potentially infected workers to isolate at work or quarantine at home, and providing an isolated space at work.
- Minimizing negative impacts of worker isolation/quarantine, such as remote work when possible or employee use of paid sick leave to stay home (tax credits available through March 31, 2021 as part of the Families First Coronavirus Response Act for employer-paid sick leave).
- Isolating symptomatic workers at work, using screening and testing.
- Enhancing cleaning and disinfection if a possible COVID-19 exposure occurs, using CDC cleaning recommendations and OSHA worker safety guidelines.
- Guiding workers on COVID-19 screening and testing, but following state and local health department guidelines and complying with employment laws.
- Reporting COVID-19 infection statistics (using OSHA Form 300 logs).
- Establishing a process for anonymous worker concerns and ensuring non-retaliation against worker complaints.
- Offering free COVID-19 vaccines on-site, but only if available and following state and local health department guidelines.
- Ensuring no disparate treatment of vaccinated vs. non-vaccinated workers, meaning all workers continue to follow the same workplace safety guidelines, including protective masks and social distancing, regardless of vaccine status.
- Following other applicable OSHA rules.
U.S. OSHA’s guidance focuses heavily on: (a) eliminating the hazard of COVID-19 at work by isolating and sending home all workers who are or may be infected; (b) quarantining potentially exposed workers; (c) physical distancing and physical barriers; (d) use of face coverings; (e) improving ventilation at work; (f) providing free personal protective equipment at work (PPE); (g) good personal hygiene; and (h) routine cleaning and disinfection.
As noted above, this guidance is in addition to OR-OSHA
’s and Washington L&I DOSH’s
mandatory requirements for COVID-19 workplace safety rules. Each state’s rules include mandatory physical distancing, mandatory risk assessment and infection control plans, mandatory employee training, and mandatory posting of COVID-19 information. State mandatory rules relating to COVID-19 remain in effect until they are repealed or replaced.
If employers would like assistance on how best to comply with U.S. OSHA, OR-OSHA, CDC, existing employment laws, state and local health department rules, and other applicable rules and regulations, contact Bullard Law for assistance.
The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.
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