Workers' Compensation: OSHA Issues Biden-Harris Administration Guidance to Protect Workers from COVID-19

Today, OSHA issued the long-anticipated Biden-Harris Administration guidance to protect workers from COVID-19. The action is consistent with President Biden's recently issued Executive Order to protect workers and ensure a safer workplace environment.

The guidance is intended to inform employers and workers in most workplace settings outside of healthcare to help them identify risks of being exposed to and/or contracting COVID-19 at work and to help them determine appropriate control measures to implement. Separate guidance is applicable to healthcare (CDC guidance) and emergency response (CDC guidance) settings. OSHA has additional industry-specific guidance. This guidance contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.

The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus prevention program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.

“Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” provides updated guidance and recommendations, and outlines existing safety and health standards. OSHA is providing the recommendations to assist employers in providing a safe and healthful workplace.

“More than 400,000 Americans have died from COVID-19 and millions of people are out of work as a result of this crisis. Employers and workers can help our nation fight and overcome this deadly pandemic by committing themselves to making their workplaces as safe as possible,” said Senior Counselor to the Secretary of Labor M. Patricia Smith. “The recommendations in OSHA’s updated guidance will help us defeat the virus, strengthen our economy and bring an end to the staggering human and economic toll that the coronavirus has taken on our nation.”

COVID-19 is a highly infectious disease that is spread most commonly through respiratory droplets and particles produced when an infected person exhales, talks, vocalizes, sneezes, or coughs. COVID-19 is highly transmissible and can be spread by people who have no symptoms. Particles containing the virus can travel more than 6 feet, especially indoors, and can be spread by individuals who do not know they are infected.

Face Coverings, either cloth face coverings or surgical masks, are simple barriers that help prevent respiratory droplets from your nose and mouth from reaching others. Face coverings protect those around you, in case you are infected but do not know it, and can also reduce your own exposure to infection in certain circumstances. Wearing a face covering is complementary to and not a replacement for physical distancing.

Employers should implement COVID-19 Prevention Programs in the workplace. The most effective programs engage workers and their union or other representatives in the program's development, and include the following key elements: conducting a hazard assessment; identifying a combination of measures that limit the spread of COVID-19 in the workplace; adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace; and implementing protections from retaliation for workers who raise COVID-19 related concerns.

The guidance below provides additional detail on key measures for limiting the spread of COVID-19, starting with separating and sending home infected or potentially infected people from the workplace, implementing physical distancing, installing barriers where physical distancing cannot be maintained, and suppressing the spread by using face coverings. It also provides guidance on use of personal protective equipment (PPE), when necessary, improving ventilation, providing supplies for good hygiene, and routine cleaning and disinfection.

OSHA will continue to update this guidance over time to reflect developments in science, best practices, and standards, and will keep track of changes for the sake of transparency. In addition, OSHA expects to continue to update guidance relevant to particular industries or workplace situations over time.

What Workers Need To Know about COVID-19 Protections in the Workplace

The best way to protect yourself is to stay far enough away from other people so that you are not breathing in particles produced by an infected person – generally at least 6 feet (about 2 arm lengths), although this is not a guarantee, especially in enclosed spaces or those with poor ventilation.
Practice good personal hygiene and wash your hands often. Always cover your mouth and nose with a tissue when you cough or sneeze or use the inside of your elbow and do not spit. Monitor your health daily and be alert for COVID-19 symptoms (e.g., fever, cough, shortness of breath, or other symptoms of COVID-19).
Face coverings are simple barriers to help prevent your respiratory droplets or aerosols from reaching others. Not all face coverings are the same; the CDC recommends that face coverings be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents.
The main function of wearing a face covering is to protect those around you, in case you are infected but not showing symptoms. Studies show that face coverings reduce the spray of droplets when worn over the nose and mouth.
Although not their primary value, studies also show that face coverings can reduce wearers' risk of infection in certain circumstances, depending upon the face covering.
You should wear a face covering even if you do not feel sick. This is because people with COVID-19 who never develop symptoms (asymptomatic) and those who are not yet showing symptoms (pre-symptomatic) can still spread the virus to other people.
It is especially important to wear a face covering when you are unable to stay at least 6 feet apart from others since COVID-19 spreads mainly among people who are in close contact with one another. But wearing a face covering does not eliminate the need for physical distancing or other control measures (e.g., handwashing).
It is important to wear a face covering and remain physically distant from co-workers and customers even if you have been vaccinated because it is not known at this time how vaccination affects transmissibility.
Many employers have established COVID-19 prevention programs that include a number of important steps to keep workers safe – including steps from telework to flexible schedules to personal protective equipment (PPE) and face coverings. Ask your employer about plans in your workplace.

The Roles of Employers and Workers in Responding to COVID-19

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.

Implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.

The most effective COVID-19 prevention programs engage workers and their representatives in the program's development and implementation at every step, and include the following elements:

Assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer's behalf.
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.
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. Key examples (discussed in additional detail below) include: In addition to these general guidelines, more specific guidance is available for certain industries.

eliminating the hazard by separating and sending home infected or potentially infected people from the workplace;
implementing physical distancing in all communal work areas [includes remote work and telework];
installing barriers where physical distancing cannot be maintained;
suppressing the spread of the hazard using face coverings;
improving ventilation;
using applicable PPE to protect workers from exposure;
providing the supplies necessary for good hygiene practices; and
performing routine cleaning and disinfection.

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.
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. See below for additional elements involving educating and training workers of COVID-19 procedures.
In addition, a best practice is to 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, respectively.
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. Communications should include:

Basic facts about COVID-19, including how it is spread and the importance of physical distancing, use of face coverings, and hand hygiene. See About COVID-19 and What Workers Need to Know About COVID-19, above and see more on physical distancing, PPE, face coverings, and hygiene, respectively, below;
Workplace policies and procedures implemented to protect workers from COVID-19 hazards (the employer's COVID-19 prevention program); and
Some means of tracking which workers have been informed and when.

In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free of retaliation. This information should also be provided in a language that workers understand. (See Implementing Protections from Retaliation, below.) Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.
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. See below for additional guidance involving eliminating the hazard.
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. The Families First Coronavirus Response Act provides certain employers 100% reimbursement through tax credits to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through March 31, 2021.
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. See below for additional elements involving screening and testing.
Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. If someone who has been in the facility is suspected or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. This includes:

Closing areas used by the potentially infected person for enhanced cleaning.
Opening outside doors and windows to increase air circulation in the area.
Waiting as long as practical before cleaning or disinfecting (24 hours is optimal).
Cleaning and disinfecting all immediate work areas and equipment used by the potentially infected person, such as offices, bathrooms, shared tools and workplace items, tables or work surfaces, and shared electronic equipment like tablets, touch screens, keyboards, and remote controls.
Vacuuming the space if needed. Use a vacuum equipped with a high-efficiency particulate air (HEPA) filter, if available. Wait until the room or space is unoccupied to vacuum.
Providing cleaning workers with disposable gloves. Additional PPE (e.g., safety glasses, goggles, aprons) might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash.
After cleaning, disinfecting the surface with an appropriate EPA-registered disinfectant on List N: Disinfectants for use against SARS-CoV-2.
Following requirements in OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.

Once the area has been appropriately disinfected, it can be opened for use. Workers without close contact with the potentially infected person can return to the area immediately after disinfection.
If it is more than 7 days since the infected person visited or used the facility, additional cleaning and disinfection is not necessary. Continue routine cleaning and disinfection, described below.
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. CDC has published strategies for consideration of incorporating viral testing for SARS-CoV-2, the virus that causes COVID-19, into workplace COVID-19 preparedness, response, and control plans. (See below for more on the use of testing to determine when a worker may return to work after illness or exposure.)
Note: Performing screening or health checks is not a replacement for other protective measures such as face coverings and physical distancing. Asymptomatic individuals or individuals with mild non-specific symptoms may not realize they are infected and may not be detected during through screening.
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). Employers must follow the requirements in 29 CFR 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. More information is available on OSHA's website. Employers should also report outbreaks to health departments as required and support their contact tracing efforts.
In addition, employers should be aware that reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer or OSHA would constitute a violation of Section 11(c) of the Act. In addition, 29 CFR 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.
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. For example, employers may not discriminate against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer's agent, other employees, a government agency, or to the public, such as through print, online, social, or any other media; or against an employee for voluntarily providing and wearing their own personal protective equipment, such as a respirator, face shield, gloves, or surgical mask.
In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom 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 (see educating and training workers about COVID-19 policies and procedures, above); also consider using a hotline or other method for workers to voice concerns anonymously.
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.
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 not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
Other applicable OSHA Standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These standards include: requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020). There is no OSHA standard specific to COVID-19; however, employers still are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.