President Joe Biden just recently commemorated crossing the grim threshold of 500,000 COVID-related deaths in the U.S. Recognizing the growing numbers of both COVID infections and resulting deaths, he signed an Executive Order in late January directing the Occupational Safety and Health Administration (“OSHA”) to issue new guidelines on workplace safety. Specifically, he ordered OSHA to provide more clarity and specificity to workplaces.
OSHA responded on January 29 by publishing its guide, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” These new guidelines update the original and more general guidance issued by OSHA in March of 2020.
OSHA Addresses Workers
The new guidance has a short section addressed to workers that largely reiterates COVID mitigation efforts, such as washing one’s hands, wearing a face mask, and maintaining physical distance. Of note is a reminder that these mitigation efforts must still be followed even after vaccination because it is not clear whether one can continue to serve as a vector for the virus. OSHA also encourages workers to ask their employers about COVID-specific safety and mitigation plans, which could include telework and flexible scheduling.
What Are an Employer’s Responsibilities?
Most of the new guidance focuses on the responsibilities of employers to create a COVID-19 prevention program, but it recognizes that workers and unions should be actively involved in the “development and implementation” of the plan. OSHA has outlined numerous plan components for employers. Some are commonplace and obvious by now, such as providing appropriate personal protective equipment (PPE) and enforcing physical distance. The following are some of the more notable recommendations:
- Assign a workplace coordinator. This person should serve as an internal clearinghouse of information about the prevention plan and, as a representative of the employer, respond to any COVID-19-related issues.
- Accommodate high-risk workers. Because older workers and those with underlying medical conditions are at a higher risk of suffering adverse effects of COVID infection, employers should modify their working conditions. This could include telework, flexible scheduling, or being moved to a more open or better ventilated area. Employees with disabilities may be legally entitled to “reasonable accommodations” under the Americans with Disabilities Act (“ADA”).
- Minimize the impact of quarantine and isolation. If workers must isolate, employers should try to assist them by allowing for telework or offering paid sick leave. Under the Families First Coronavirus Response Act (FFCRA), some employers are eligible for 100% reimbursement through tax credits for providing paid sick leave or expanded family and medical leave for certain COVID-19-related reasons. This program is set to end March 31, 2021.
- Do not distinguish between vaccinated and non-vaccinated employees. Because it is not yet known if vaccination protects against transmission of the coronavirus, employers should not allow vaccinated employees to skimp on following mitigation measures. Vaccinated employees must be held to the same standards as all other workers, including wearing a face mask and maintaining physical distance.
- Do not retaliate. Employers are barred from retaliating against workers who raise reasonable, good-faith concerns about safety in the workplace—including those related to COVID-19—by the Occupational Safety and Health Act. This protection covers complaints made to the employer, to other employees, to a union, to a governmental agency, or to the public, including on social media.
- Establish open, effective communication. Employers must be clear that employees should immediately share any potential workplace hazards and signs of COVID infection with them. In turn, employers must adequately relay the policies and procedures of the plan to their workers, and do so in a language the workers understand. Businesses might adopt the use of an “intranet” as a means of communicating, company email, or even a phone tree.
- Provide training on the plan. Employers should regularly train their workers on the COVID mitigation plan. They should strive to include anyone else who might be on site, such as independent contractors. Training should include information on how the coronavirus is transmitted, workers’ right to a safe environment, whom workers can contact with questions or concerns, and workers’ right to be free from retaliation.
Do Employers Face Increased Legal Liability?
Just like the original guidance, the new guidance is just that—guidance. It restates mandatory safety and health standards already in effect, but does not create an additional legal standard specific to COVID-19 or serve as a regulation. In short, it does not create new legal obligations for employers.
There are, however, ongoing legal requirements that all employers should keep in mind. The General Duty Clause of the Occupational Safety and Health Act mandates that employers provide a workplace free from hazards likely to cause death or grave physical harm. The novel coronavirus is one such hazard, and so employers have a duty to mitigate this threat. If a grave hazard persists, employees may have a right to refuse work.
Under the ADA, employers generally may not inquire about medical conditions or subject employees to medical conditions. Exceptions are made, however, to protect against so-called “direct threats” to health and safety. The Equal Employment Opportunity Commission (EEOC) has determined that COVID-19 does pose a “direct threat,” and therefore certain inquiries and examinations (such as temperature checks) may be permitted, as long as they are carried out in a generally applicable, non-discriminatory manner.
Employers must grant “reasonable accommodations” to workers with disabilities, according to the ADA. Because certain employees with disabilities are at higher risk of contracting COVID-19, employers might have to provide enhanced protections for them, going beyond the general outlines of their mitigation plan. Conversely, ADA accommodations might require deviating from the mitigation plan. For example, workers with pre-existing respiratory problems, such as asthma or COPD, could request an exemption from wearing a face mask.
Guidance from a variety of federal, state, and local agencies is in constant flux. At times, this guidance also causes certain legal requirements to shift. If you have a question about your obligations related to COVID-19, reach out to one of our experienced employment attorneys. To see additional content related to the pandemic, click here.