President Biden directed the Occupation Safety and Health Administration (OSHA) to issue revised guidance to employers on workplace safety during the COVID-19 pandemic. On January 29, 2021, OSHA issued revised guidance to mitigate and prevent the spread of COVID-19 in the workplace. Below are bullet points of the new safety recommendations:

• Designate a workplace coordinator who is responsible for COVID-19 issues on the employer’s behalf;

• Include workers in conducting a thorough hazard assessment that identifies where and how workers might be exposed to COVID-19 in the workplace;

• Provide and require all workers, subject to reasonable accommodation, to wear face coverings, which should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. Employers should provide face coverings to the workers at no cost, including daily and more frequent replacements as needed. Employers should also require any other individuals at the workplace (e.g., visitors, customers, non-employees) to wear a face covering unless they are under the age of 2 or are actively consuming food or beverages on site;

• COVID-19 safety workplace policies should be communicated to workers clearly, frequently, and via multiple methods to workers, contractors, and any other individuals on site, as appropriate. The communication should include basic facts about how COVID-19 is spread, the importance of physical distancing, use of face coverings and hand hygiene, the employer’s COVID-19 prevention program, and a means of tracking which workers have been informed and when. Additionally, employers should ensure that workers understand their right to a safe workplace, who to contact with questions or concerns, and their right to raise concerns without fear of retaliation;

• Workers are asked to report to the employer, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace. As a best practice, employers should create and test two-way communication systems that workers can use to self-report if they are sick or have been exposed, and that employers can use to notify workers of exposures and closures;

• Make a COVID-19 vaccine or vaccination series available at no cost to all eligible workers and provide information and training on the benefits and safety of vaccinations;

• Because at this time there is no evidence that COVID-19 vaccines prevent transmission from person-to-person, continue to follow protective measures in the workplace even if workers are vaccinated;

• Identify a combination of measures that will limit the spread of COVID-19 in the workplace including: separating and sending home infected or potentially infected workers following existing CDC guidelines; implementing physical distancing in all communal areas and installing barriers where distancing cannot be maintained; providing all workers with face coverings at no cost; improving ventilation with increased outside air or improving central air filtration; providing supplies for good hygiene practices; and conducting routine cleaning and disinfection practices;

• Where feasible, 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;

• Instruct workers who are infected or potentially infected to stay home and isolate or quarantine. Workplace absence policies should be non-punitive;

• Allow workers to telework or work in an isolated area. If remote work is not feasible, allow workers to use paid sick leave, if available, or consider implementing paid leave policies to reduce risk for everyone at the workplace;

• Immediately separate workers who appear to have symptoms upon arrival at work or who develop symptoms during their work shift from other workers, customers, and visitors, and send them home and encourage them to seek medical attention;

• Perform enhanced cleaning and disinfection of immediate work areas and equipment if workers with suspected or confirmed COVID-19 have been in the facility. Among other things, this includes using appropriate EPA-registered disinfectants, and vacuuming with a high-efficiency particulate air filter, if available. If it is more than 7 days since the infected person visited or used the facility, additional cleaning and disinfection is not necessary, but routine cleaning and disinfection should be continued;

• Provide guidance on screening and testing. Employers should inform workers of employer testing requirements, if any, and availability of testing options;

• Record and report COVID-19 infections and deaths, in accordance with OSHA recording requirements. Employers should report outbreaks to health departments as required and support their contact tracing efforts;

• Implement protections from retaliation and consider using a hotline or other anonymous process for workers to raise concerns. In addition to notifying workers of their rights to a safe and healthful work environment, employers should ensure that workers know who to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities;

• Continue compliance with other applicable OSHA standards for protecting workers from infection.

The revised guidance provides several new safety recommendations as well as further guidance on previously provided recommendations. The revised guidance does not legally obligate employers to implement the recommendations, however, it would be prudent for employers to revisit their current COVID-19 safety controls in light of the recommendations. If you have any questions regarding OSHA’s revised guidance and whether your company’s COVID-19 safety controls should be revised, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.