The guidance states that it is “advisory.” However, failure to follow the guidance may expose employers to, among other risks, OSHA citations and substantial penalties for violating the OSHA general duties clause.
On January 21, 2021, President Biden signed an Executive Order on Protecting Worker Health and Safety. Pursuant to the executive order, OSHA issued guidance on January 29, 2021 that includes extensive information for structuring and implementing an effective COVID-19 Prevention Program to protect their workforces.
The guidance states that it is “advisory.” However, failure to follow the guidance may expose employers to, among other risks, OSHA citations and substantial penalties for violating the OSHA general duties clause. In this regard, the executive order calls for increased OSHA enforcement and the guidance is a starting point for such enforcement.
The executive order also directs OSHA to consider whether any emergency federal standards on COVID-19 workplace health and safety are necessary and, if so, to issue them by March 15, 2021. It is very likely that such emergency standards will be issued, and complying with the new guidance will also help employers comply with the anticipated emergency standards.
The guidance not only sets forth 16 elements to include in preparing and implementing a COVID-19 Prevention Program but also provides helpful information on limiting the spread of COVID-19 with masks, increasing ventilation, etc. In particular, some of the more salient issues addressed in the guidance include:
Developing a Written COVID Prevention Program
The guidance advises employers to designate a workplace coordinator who is responsible for COVID-19 issues. It is important for the coordinator to ensure that the written plan addresses all 16 elements described in the guidance. In doing so, it will be of critical importance to focus on:
- Identifying where and how workers may be exposed to COVID-19 at work;
- Identifying the hierarchy of controls available to mitigate these risks (e.g., hazard elimination, engineering controls, workplace policies and practices, and personal protective equipment); and
- Selecting a combination of controls that includes the most effective feasible controls, such as eliminating the hazard by keeping infected and potentially infected people from the workplace, implementing physical distancing, erecting barriers where distancing is not feasible, improving ventilation and using proper face coverings.
The importance of employee input, training employees in the plan’s requirements, monitoring compliance (and taking measured corrective action as warranted) and proper documentation and recordkeeping cannot be overstated.
The guidance does not mandate vaccination. However, it implicitly encourages employers to have employees seek vaccination by including the following among the elements of a prevention program: “Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.”
At the conclusion of this Alert are links to prior Duane Morris Alerts discussing legal and practical issues regarding vaccines.
Unlike the laws that prohibit disability discrimination, the laws that prohibit age discrimination―including the Age Discrimination in Employment Act―do not require that employers make reasonable accommodations on behalf of older workers simply by virtue of their age. However, OSHA’s guidance suggests that employers consider reasonable modifications to the working conditions for high-risk workers, which under CDC guidelines includes workers age 65 and older. The failure of an employer to consider accommodations for older workers based on their age may expose an employer to OSHA citations. The questions of whether and how to reach out to high-risk employees (including older employees) is beyond the scope of this Alert, but require careful consideration, including reviewing guidance from other agencies, such as the EEOC.
Employers (particularly those operating in multiple states) should be mindful of state requirements that differ from and/or are more onerous than the guidance. For example, detailed information is provided (based upon the most current CDC guidance) for the length of isolation and/or quarantine for employees who have or likely have COVID-19 as well as those who may have been exposed to COVID-19 (“close contact,” as broadly defined). While the guidance provides that quarantines may be fewer than 14 days after the last close contact under certain circumstances, employers must be mindful of states or localities that still require a 14-day quarantine after the last close contact. The broad definition of close contact can be found in the guidance in the section on “Eliminating the Hazard by Separating and Sending Home Infected or Potentially Infected People from the Workplace.”
The guidance states that employers generally should provide to all employees, at no cost to them, face coverings made of cloth or surgical masks. More specifically, face coverings are to be made of at least two layers of a tightly woven breathable fabric such as cotton, should not have exhalation valves or vents and should fit snugly over the nose, mouth and chin. Employers with policies and practices that allow face coverings with exhalation valves or vents should update them to preclude these kinds of face coverings that do not conform to the guidance. The guidance further provides that even those who have received vaccines should wear face coverings as well as follow other safety measures, such as engaging in social distancing. This is an important issue for education as well as monitoring compliance with safety precautions by management.
Contractors and Staffing Companies
The employees of contractors and staffing companies present COVID-19 workplace exposure risks, too. The joint employer risk can be minimized (not eliminated) depending on how an employer communicates with a contractor or staffing company about the safety requirements and restrictions that apply to its employees. As in other areas, employers will need to balance business interests with risk mitigation.
OSHA encourages employers to consider effective means for employees to communicate concerns about COVID-19 safety, including anonymous reporting, with assurances against retaliation. Providing a specific way for employees to raise concerns with assurances against retaliation not only provides a vehicle for employees to share information that will help make the workplace safer but also makes it less likely that an employee will exercise their right to contact OSHA. In this regard, most employers already have policies that deal with concerns about unethical, illegal or unsafe conduct/conditions. It is easy to make clear that such policies apply to concerns about COVID-19.
The guidance emphasizes that employee input is an integral part of developing and implementing an effective COVID-19 Prevention Program. While employee input can be invaluable, employers need to be thoughtful on how they obtain employee input to minimize the risk of collective action under the National Labor Relations Act. Employers do not want to stimulate unions or concerted actions. At the same time, employers can anticipate that unions will focus on the guidance to organize employees in noncompliant workplaces. Unionized employers should take care not to bargain directly with employees or take unilateral actions without first communicating or bargaining with the union, unless authorized by a management rights or other provision of a collective bargaining agreement. In this pandemic, unions should be supportive of actions to keep the workplace safe, and good communications with union representatives in organized settings may assist in this effort.
As we all know, good ventilation is important to minimizing the risk of airborne COVID-19 transmission. But what does this mean beyond keeping windows open and fans on? The guidance includes detailed and thoughtful suggestions for employers to consider to minimize airborne transmission. This is an important area of not only physical but also emotional safety. If employees do not feel safe returning to work, they will find ways not to do so.
What This Means for Employers
Responsible employers want to do what’s right by their employees. The guidance will help them do so in the context of protecting employees from COVID-19 risks. Employers should update their COVID-19 Prevention Programs, policies and practices in light of the new guidance, which should be reviewed in its entirety.
The guidance provides, in a single place, substantial information to help protect employees from work-related COVID-19 risks. In addition to promoting employee health and demonstrating concern and respect for employee well-being, the manner in which employers address COVID-19 risks may also have a significant impact upon the ability to effectively conduct business and even provide a competitive advantage.
Finally, this brief Alert covers only some of the more salient issues raised by the guidance. Employers are well advised to review the guidance carefully to see where there may be opportunities to do even more to protect their employees, and in so doing, protect themselves.
In this regard, how areas for improvement are communicated is also important; we want to increase safety, not create smoking guns for plaintiff’s counsel.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Jonathan A. Segal, Jonathan D. Wetchler, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.