OSHA Suggests Employers May Be Required To Maintain A COVID-19 Prevention Program – Robert A. Tandy

Recently, the Occupational Safety and Health Administration (OSHA) released guidance on mitigating and preventing the spread of COVID-19 in the workplace. Under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. Although OSHA indicated the guidance was “for planning purposes,” it is likely the first step towards requiring employers to maintain a COVID-19 prevention program. As OSHA provided, implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.

OSHA recommends that a COVID-19 prevention program engage workers in the development and implementation of the program, and include the following elements:

1. Assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf.

2. Identification of where and how workers might be exposed to COVID-19 at work. This includes a thorough hazard assessment to identify potential workplace hazards related to COVID-19. This assessment will be most effective if it involves workers (and their representatives) because they are often the people most familiar with the conditions they face.

3. Identification of a combination of measures that will limit the spread of COVID-19 in the workplace, in line with the principles of the hierarchy of controls. This should include a combination of eliminating the hazard, engineering controls, workplace administrative policies, personal protective equipment (PPE), and other measures, prioritizing controls from most to least effective, to protect workers from COVID-19 hazards.

4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices. Older adults and people of any age who have serious underlying medical conditions are at higher risk for severe illness from COVID-19. Workers with disabilities may be legally entitled to “reasonable accommodations” that protect them from the risk of contracting COVID-19. Where feasible, employers should consider reasonable modifications for workers identified as high-risk who can do some or all of their work at home (part or full-time), or in less densely-occupied, better-ventilated alternate facilities or offices.

5. Establishment of a system for communicating effectively with workers and in a language they understand. Ask workers to report to the employer, without fear of reprisal (see 12 below), COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace. Communicate to workers, in a language they can understand and in a manner accessible to individuals with disabilities, all policies and procedures implemented for responding to sick and exposed workers in the workplace.

6. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand. Communicate supportive workplace policies clearly, frequently, in plain language that workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable), and in a manner accessible to individuals with disabilities, and via multiple methods to employees, contractors, and any other individuals on site, as appropriate, to promote a safe and healthy workplace.

7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19. Ensure that absence policies are non-punitive. Policies that encourage workers to come to work sick or when they have been exposed to COVID-19 are disfavored.

8. Minimize the negative impact of quarantine and isolation on workers. When possible, allow them to telework, or work in an area isolated from others. If those are not possible, allow workers to use paid sick leave, if available, or consider implementing paid leave policies to reduce risk for everyone at the workplace.

9. Isolating workers who show symptoms at work. Workers who appear to have symptoms upon arrival at work or who develop symptoms during their work shift should immediately be separated from other workers, customers, and visitors, sent home, and encouraged to seek medical attention.

10. Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. Providing guidance on screening and testing: Follow state or local guidance and priorities for screening and viral testing in workplaces. Testing in the workplace may be arranged through a company’s occupational health provider or in consultation with the local or state health department. Employers should inform workers of employer testing requirements, if any, and availability of testing options.

11. Recording and reporting COVID-19 infections and deaths: Employers are responsible for recording work-related cases of COVID-19 illness on their Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work).

12. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities.

13. 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.

14. Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

Many employers have likely implemented many of these policies and procedures – but may not have adopted them in a comprehensive COVID-19 prevention program. You should use this guidance as an opportunity to review your current policies and procedures and begin the process of compiling them into a formal prevention program.

For additional information you should contact Robert A. Tandy, Esq. at 201-474-7100.