Biden Administration Takes Early Action Focused on COVID-19 and Worker Health and Safety
The Order reflects President Biden’s promises during the presidential campaign and transition to enhance the Occupational Safety and Health Administration’s (OSHA) efforts to protect workers from COVID-19 and instructs the agency to take the following steps:
- Issue revised guidance to employers on workplace safety during the COVID-19 pandemic;
- Consider issuing a COVID-19-specific emergency temporary standard that includes requirements regarding the use of masks in the workplace;
- Review OSHA’s COVID-19 enforcement efforts and identify changes that could better protect workers;
- Launch a national program to focus OSHA COVID-19 enforcement efforts on violations that put the largest number of workers at serious risk or that violate the Occupational Safety and Health Act’s (OSH Act) prohibition of retaliation against employees who raise health and safety concerns; and
- Coordinate with the Department of Labor and OSHA area offices to conduct a multilingual outreach campaign to inform workers and their representatives of their rights under applicable law.
On January 29, 2021, in response to the Order’s directive, OSHA issued updated guidance on mitigating and preventing the spread of COVID-19 in the workplace. The guidance is directed to employers outside of the health care sector and most of it is a repetition of the recommendations contained in prior OSHA guidance. However, it does include several new recommendations that employers should observe:
- Provide all workers with face coverings at no cost to the employees;
- Assign a workplace coordinator who is responsible for workplace COVID-19 issues;
- Provide employees with guidance on screening and testing for COVID-19;
- Implement protections from retaliation against employees who voice concerns about COVID-19-related hazards and set up an anonymous process for employees to report them;
- Make COVID-19 vaccines available at no cost to employees;
- Ensure that vaccinated employees continue to follow the same COVID-19 safety precautions as employees who are unvaccinated.
OSHA advised that COVID-19 prevention programs should be developed in consultation with employees and their representatives and should include the following elements:
- Assignment of a workplace coordinator responsible for managing COVID-19 issues;
- A hazard assessment that identifies where and how workers might be exposed to COVID-19 at work;
- Utilization of the “hierarchy of controls” method to identify methods to limit the spread of COVID-19 in the workplace, such as isolating and sending home employees potentially infected with COVID-19, implementing physical distancing in communal work areas, installing barriers where physical distance is infeasible, requiring face coverings, improving ventilation, using appropriate personal protective equipment, providing supplies for good hygiene practices, and performing routine cleaning and disinfection;
- Consideration of protections for workers at higher risk for severe illness;
- Establishment of a system for effectively communicating with workers in a language they understand;
- Training on COVID-19 policies and procedures;
- Policies requiring employees who are infected or potentially infected to stay home;
- Policies permitting employees to telework or use paid sick leave where telework is infeasible;
- Policies for isolating workers who show symptoms at work;
- Enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 infections have been in the workplace;
- Guidance on COVID-19 screening and testing procedures;
- Policies for recording and reporting work-related COVID-19 infections and deaths;
- Policies to protect employees from retaliation and establishing an anonymous process for workers to voice concerns about COVID-19-related hazards;
- The provision of the COVID-19 vaccine to employees at no cost;
- Policies that require vaccinated and un-vaccinated employees to continue following the same protective measures; and
- Adherence to the OSHA standards discussed in prior COVID-19 guidance
With respect to a COVID-19-specific emergency temporary standard (ETS), the Order instructs OSHA to determine whether an ETS is necessary and, if so, to issue one by March 15, 2021. In order to issue an ETS, OSHA must first determine that (1) employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (2) an ETS is necessary to protect employees from such danger. Any COVID-19-specific ETS that OSHA issues is likely to be challenged in court and OSHA may be challenged to satisfy the necessary standard in light of a prior court precedents.
In March 2020, the AFL-CIO filed an administrative petition asking OSHA to issue a COVID-19-specific ETS, which the agency denied. In May 2020, the AFL-CIO sought review of that decision in the U.S. Court of Appeals for the D.C. Circuit. In its briefing opposing the ETS, OSHA argued that its current standards provide adequate protection to employees from COVID-19 and that an ETS is not necessary. The court denied the AFL-CIO’s petition for review, holding that OSHA’s decision not to issue an ETS was entitled to “considerable deference.” The court stated that “[i]n light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments,” OSHA reasonably determined that an ETS was not necessary.
The court’s order specifically referenced the OSH Act’s general duty clause, which requires employers to protect employees from recognized hazards that are causing or are likely to cause physical harm.
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