Among the very first actions President Biden took upon entering office was signing Executive Order 13999 which, among other things, directed the federal Occupational Safety and Health Administration (“OSHA”) to take steps to reduce the risk that workers may contract COVID-19 in the workplace.  Among the directives in EO 13999, OSHA must: (1) revise its guidance to employers on workplace safety during the COVID-19 pandemic; and (2) consider whether any emergency temporary standards on COVID-19 are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.

OSHA took the first of those steps on January 29, 2021, when it published revised guidance titled: “Protecting Workers: Guidance on Mitigating and Protecting the Spread of COVID-19 in the workplace.”[1]   While OSHA published COVID-19 guidance for employers last year, the revised guidance reflects an increased understanding of how the virus is contracted.  One of the biggest differences is that the revised guidance removes a “pyramid of risk” that recommended different levels of protections for certain workers.

The revised guidance includes recommendations regarding face coverings, implementation of a COVID-19 Prevention Program, steps to identify virus hazards and implement measures to stop its spread in the workplace, recommended practices to ensure infected or potentially infected employees are separated from other workers, vaccine recommendations, and suggested anti-retaliation protections for workers who raise COVID-19 related concerns.

While the revised guidance is not legally binding, failure to follow the recommendations could be the basis for a violation of Section 5(a)(1) of the OSH Act, known as the “General Duty Clause,” which requires employers to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm.  Employers should be aware of this possibility, given the directive in EO 13999 for OSHA to immediately step up enforcement efforts and “launch a national program to focus OSHA enforcement efforts related to COVID-19.”

In addition, based on statements from OSHA’s leaders and pressure from labor unions and workers’ rights groups, it appears very likely that OSHA will issue an emergency temporary COVID-19 standard on or before March 15th.  Employers would do well to become familiar with the revised guidance because it provides a “sneak peek” of what that the anticipated standard will likely require.  Additionally, four states with state OSHA plans – Virginia, California, Michigan and Oregon – have adopted emergency COVID-19 standards for private employers in those states.  The anticipated federal standard will likely mirror some requirements in those standards.

Stevens & Lee will continue to monitor these developments and provide updates as appropriate.

[1] There are separate recommendations for employers in the healthcare industry, and there is industry-specific guidance that may apply to certain employers beyond the general guidance provided in OSHA’s recent publication.