Since taking office, President Biden has swiftly rolled out sweeping changes to various Trump-era programs and regulations. One of President Biden's targets has been in Occupational Safety and Health Administration's (OSHA) arena, where he has recently nominated Julie Su, a well-known workers' rights advocate and current Secretary of the California Labor and Workforce Development Agency, to the position of Deputy Secretary of Labor at the U.S. Department of Labor, and appointed Rebecca Reindel, of the AFL-CIO, to the National Advisory Committee on Occupational Safety & Health. In tandem with these nominations, President Biden issued his Executive Order on Protecting Worker Health and Safety on January 21, 2021 (the EO). These executive actions, and their rejection of former President Trump's positions, signal major changes on the horizon for workplace safety rules. Employers should keep these changes in mind as their employees return to, or continue, onsite work.
The EO requires OSHA to publish guidance and rules for confronting the COVID-19 pandemic. Specifically, the EO directs OSHA to:
- Issue revised guidance on workplace safety within two weeks of the issuance of the EO;
- Consider temporary emergency workplace standards (including mask wearing) and issue them, if they are determined to be necessary to protect workers, by March 15, 2021;
- Review potential changes to current OSHA enforcement efforts;
- Launch a nationwide program on enforcement efforts to address violations and retaliation;
- Coordinate with labor unions, community organizations, and industry associations for the execution of a multilingual outreach campaign to inform workers of their rights; and
- Coordinate with states regarding protection of public employees.
Following the EO's mandate, OSHA issued guidance as a reference for employers and employees about the risk of exposure to COVID-19 in the workplace and how to best mitigate this risk. Note that the guidance is intended as a reference for planning employees' return to, or continuation of, work onsite, but is not a mandatory statute or regulation, and imposes no new obligations on employers. It reminds employees and employers:
- To continue with typical hygienic practices, such as maintaining at least 6 feet of distance (about two arm lengths, although such a distance is not a guarantee of safety in enclosed spaces or spaces with poor ventilation), washing hands often, monitoring for COVID-19 symptoms, and wearing face coverings, a standard that is not mandatory in many states, and cleaning and disinfecting;
- To implement a COVID-19 prevention program that, in addition to including hazard assessments, workplace monitoring, and training on protocols, also includes such suggestions as (i) establishing a two-way communication system for employees to self-report to employers and that employers can use to notify workers of exposures and closures; (ii) providing "non-punitive" absence policies for employees who are infected or potentially infected; (iii) implementing a paid leave policy for employees outside of federal, state, and local requirements; (iv) instituting protections from retaliation for reporting COVID-19-related hazards, including anonymous reporting; and (v) making the COVID-19 vaccine available to employees at no cost;
- To provide supplies necessary in the workplace, including tissues, no-touch trash cans, touchless hand sanitizer stations, posters and signage, disposable disinfecting wipes, and cleaning products.
While this guidance does not impose any new obligations on employers, it notably emphasizes remedial actions that are not currently mandated by some states, suggesting that best practice may be to institute safety measures beyond what employers may already be doing in some locations. It also offers some insight into items that could be included in any standard for COVID-19 or infectious diseases. Employers must continue to abide by all safety and health standards and regulations issued by OSHA or a state equivalent, as well as any other federal, state, or local department of health or department of labor guidance. We will continue to monitor any further developments in this area. If you have any questions about this guidance, or any COVID-19-related workplace needs, please contact the authors of this alert.