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OSHA’s Latest Guidance Suggests Employers Will Be Required To Adopt A COVID-19 Prevention Program

2.1.21

The Occupational Safety and Health Administration (OSHA) recently released new guidance on mitigating and preventing the spread of COVID-19 in the workplace in response to President Biden’s Executive Order on Protecting Worker Health and Safety. Here is what employers need to know about the January 29 release.

Why Is This Guidance Important For Employers?

OSHA indicates the guidance was prepared “for planning purposes” and directs employers to use the guidance in identifying risks of being exposed to COVID-19 in workplace settings and to determine appropriate control measures to implement. OSHA’s use of the language “for planning purposes” suggests that it is likely the first step towards OSHA implementing an Emergency Temporary Standard that will provide required steps that employers must take. Therefore, employers should begin to implement the guidance.

COVID-19 Prevention Program

OSHA’s latest guidance indicates that implementing a COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work. This guidance follows states such as California and Virginia that have adopted standards requiring many employers to implement a COVID-19 prevention program. The fact that OSHA highlights the importance of implementing a COVID-19 prevention program suggests that, if an emergency temporary standard is issued, it will include a requirement that employers implement a prevention program.

According to this latest guidance, OSHA recommends that a COVID-19 prevention program engage workers in the development and implementation of the program, and include the following elements:

  1. Assignment of a workplace coordinator to address COVID-19 issues.
  2. Identification of where and how workers might be exposed to COVID-19 at work through a hazard assessment.
  3. Identification of measures that will limit the spread of COVID-19 in the workplace, including engineering hazards, administrative policies and additional personal protective equipment.
  4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
  5. Establishment of a system for communicating effectively with workers in a language they understand, including a system for employees to self-report COVID-19 symptoms or exposure.
  6. Education and training for workers on COVID-19 policies and procedures.
  7. Instructing workers who are infected or potentially infected to stay home and isolate or quarantine.
  8. Minimizing the negative impact of quarantine and isolation on workers through telework and flexible paid leave policies.
  9. Isolating workers who show symptoms at work.
  10. Performing enhanced cleaning and disinfection after a suspected or confirmed case of COVID-19.
  11. Providing guidance on screening and testing.
  12. Recording and reporting COVID-19 infections and deaths.
  13. Implementing protections from retaliation and setting up an anonymous process for employees to voice concerns about COVID-19 hazards.
  14. Making a COVID-19 vaccine available at no cost to employees.
  15. Not relaxing preventative measures for employees who have been vaccinated.

Many employers have likely implemented many of these policies and procedures – but may not have adopted them in a comprehensive COVID-19 prevention program. You should use this guidance as an opportunity to review your current policies and procedures and begin the process of compiling them into a formal prevention program.

Additional Guidance

In addition to highlighting the importance of implementing a COVID-19 prevention program, this recent guidance largely echoes guidance previously issued by OSHA and the Centers for Disease Control and Prevention (CDC). This includes requiring that employees who have or likely have COVID-19 isolate until they meet the CDC guidelines for exiting isolation and quarantining employees who have been exposed to COVID-19. Further, the guidance suggests implementing polices on physical distancing and the use of face coverings. 

Conclusion

You should take note of OSHA’s warning that the guidance should be used for “planning purposes” and review your current policies and procedures to prepare for a possible emergency temporary standard. This guidance strongly suggests that any temporary standard will require that employers adopt a COVID-19 prevention program. You should be proactive and begin the process of adopting a comprehensive prevention program. A good first step? Read our analysis of what we expect such an Emergency Temporary Standard to contain and begin adopting the recommendations provided.

Fisher Phillips will continue to monitor these developments and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney or any member of our Workplace Safety and Catastrophe Management Practice Group.


This Legal Alert provides an overview of developing workplace issues. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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