On Jan. 21, 2021, the White House called on the federal government to take "swift action" to reduce workers' risk of exposure to Covid-19 in the workplace. President Biden issued several executive orders directly addressing pandemic-related issues. The Executive Order on Protecting Worker Health and Safety is likely to impact Ohio employers as it requires the Occupational Safety and Health Administration (OSHA) to accomplish the following:
- Release revised guidelines to employers on workplace safety during the pandemic by Feb. 4, 2021;
- Decide whether to establish emergency temporary standards (ETS) and, if so determined, implement the standards by Mar. 21, 2021;
- Heavily enforce existing Covid-19 worker and health safety requirements;
- Review current enforcement efforts of Covid-19 related penalties and identify any short-, medium-, and long-term changes that could be made to better protect workers; and
- Coordinate with other federal agencies to conduct a multilingual outreach campaign to inform workers and their representatives of their rights under applicable law.
What employers can expect from the revised OSHA guidelines
One notable change employers should anticipate is the possibility of an OSHA mandate requiring companies to enforce mask-wearing on the job or where social distancing is impractical or ineffective. This revision is markedly different from OSHA's initial stance on masks. The agency previously issued a statement refusing to classify face masks as required personal protective equipment (PPE) under OSHA's PPE standard (See 20 CFR 1910.132). OSHA justified this decision stating that scientific studies failed to show that masks were "sufficient protection from the hazard of Covid-19 to be [characterized as] PPE."
Requiring OSHA to classify masks as PPE is a likely forecast. Within a day of being sworn in, President Biden signed an executive order mandating mask-wearing on federal property, airports, planes, buses and trains. It would make sense for this administration to encourage federal agencies to enforce similar rules.
Defining an emergency temporary standard
The President's executive order also directs OSHA to "consider" implementing an emergency temporary standard (ETS), that would require employers to take clear precautions against the virus or face penalties. Unlike traditional administrative rulemaking, a process that can take years, emergency temporary standards are interim rules that quickly go into effect without a laborious rulemaking process. For that reason, an ETS is much easier to implement than permanent regulations. The standards are effective for six months and give agencies, like OSHA, time to develop formal rules. However, OSHA must find that "employees are exposed to grave danger" to justify an ETS.
Despite historical difficulty adopting such standards, all ETS for Covid-19 has a higher chance of passing judicial review for several reasons: (1) Thousands of Americans have died from the virus since March. (2) Infectious disease experts predict that the United States may not return to normal until 2022. (3) Most Americans will not have access to a vaccine until the third quarter of 2021. Therefore, OSHA can likely justify a six-month ETS and support its claims that the standard is needed to save thousands of workers.
How employers can bolster their Covid-19 health and safety guidelines
To date, Covid-19 has killed more than 400,000 Americans. Under the Biden administration, employers will face stricter scrutiny in creating safer workplaces. Employers must closely follow current OSHA guidance and stay up to date on new standards to maintain compliance and keep workers safe. Here are good practices for employers to implement.
- Establish a uniform work rule that requires employees to wear a mask around coworkers and the public.
- Explicitly distinguish approved facial coverings from prohibited ones and adequately communicate that work rule.
- Foster a work environment that encourages employees to monitor for Covid-19 symptoms and get tested, especially when they exhibit symptoms that are consistent with the virus.
- Develop a screening strategy and process for contact tracing that is aimed at preventing the spread of the virus at the worksite.
- Create a Covid-19 safety program addressing specific OSHA guidelines and require employees to take company-provided training courses addressing the company's new safety standard.
- Routinely communicate with your HR department and legal team to provide resources to educate employees on new safety standards.
Originally published by Dayton Business Journal.
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