New guidance for employers related to COVID-19 doesn’t create new mandatory standards, but the tone of the guidance is a signal from the Biden administration of more support for enforcement, according to attorneys focusing on workplace safety issues.The U.S. Department of Labor (DOL) announced on January 29 that its Occupational Safety and Health Administration (OSHA) had issued stronger worker safety guidance. The new document—Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace—isn’t substantively different from the previous administration’s guidance, but “the tone is different,” Eric J. Conn, chair of law firm Conn Maciel Carey’s OSHA practice group, says.
Conn says guidance language from the Trump administration seemed to be “pretty explicitly nonmandatory,” but the new language has a different tone and seems useful if OSHA wants to use the General Duty Clause of the Occupational Safety and Health Act to cite employers.
The General Duty Clause requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
President Joe Biden signed an Executive Order on January 21 instructing OSHA to issue new guidance and consider whether it should issue emergency temporary standards that could result in mandates for employers. If such standards are deemed necessary, the order says OSHA should issue them by March 15.
Conn says he expects that new mandatory standards are on the way. “Guidance in the interim is intended to be a little bit more conducive to supporting enforcement under the General Duty Clause until such time that there is a standard,” he says, adding that a “more heavy dose of enforcement is coming.”
Meaning for Employers
Conn says he hopes employers won’t have a lot to do in the wake of the new guidance because they should already be implementing COVID control measures. But to the extent they haven’t or are using different controls that don’t line up with the guidance, “the message is be ready for a more substantial enforcement effort,” whether that’s a result of a mandatory standard or more aggressive use of the General Duty Clause.
Employers also can expect a speedier citation process, Conn says. Under the prior administration, there were hundreds of COVID-related inspections and citations, but almost all were issued close to the 6-month statute of limitations. Also, there was a policy that COVID citations had to be approved at the national office level. Some of those restraints are lifted now, he says.
Brad R. Kolling, an attorney with Felhaber Larson in Minneapolis, Minnesota, says the new guidance puts previous guidance about best practices all in one place and provides employers with a good opportunity to review their protocols to ensure they’re following all the best practices.
OSHA has issued citations to employers that have failed to take steps to prevent exposure, and those citations have been issued under the “catchall” General Duty Clause, Kolling says. Whether OSHA goes beyond guidance and enacts COVID-specific standards will depend on whether the agency believes it needs to go beyond the General Duty Clause.
Kolling says he thinks the new detailed guidance in tandem with the General Duty Clause should be enough to put employers on notice of what is expected of them. He reminds employers that even if OSHA doesn’t turn the new guidance into specific mandatory standards, they can still be cited under the General Duty Clause.
Biden’s January 21 Executive Order calls for a mandatory emergency temporary standard to be issued by March 15 if OSHA determines one is necessary. Conn says that timetable may be too fast and a mid-April deadline would result in a more “effective, thoughtful rule.”
Emergency standards don’t require the notice and comment periods that nonemergency standards do, but Conn says he hopes OSHA will take the time to hear from employers that “have learned a ton” over the last year. He says it would be a shame not to give those employers, employees, and unions “an opportunity to share their experience gleaned from a year operating in this environment.”
Contents of Guidance
Among other things, OSHA’s new guidance calls on employers to:
- Conduct a hazard assessment;
- Identify control measures to limit the spread of the virus;
- Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home;
- Ensure that coronavirus policies and procedures are communicated to both English- and non-English-speaking workers; and
- Implement protections from retaliation for workers who raise coronavirus-related concerns.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.