2021 is starting to feel like March of 2020 all over again for employers. Each day seems to bring new information, guidance and rules that need to be reviewed and incorporated into the workplace. We highlight some of those items here:
New OSHA Guidance on Addressing COVID-19 In the Workplace
The Occupational Safety and Health Administration (OSHA), part of the U.S. Department of Labor, recently issued new guidance titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”. In the DOL’s words, the Guidance includes “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”.
While the document is labeled as “guidance” and is not a “standard or regulation”, it does contain recommendations as well as descriptions of existing mandatory safety and health standards. The Occupational Safety and Health Act’s (“the OSH Act” or “the Act”) General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. So, while the guidance does not create new legal obligations, it is still important for employers to familiarize themselves with these new guidelines and consider incorporating them into their workplace procedures. Employers should not be surprised if OSHA compliance officers conducting inspections look to this publication in assessing what a reasonable employer should do to provide a workplace compliant with the General Duty Clause.
The guidance recommends several essential elements in a prevention program:
- 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.
- Implement protections from retaliation for workers who raise coronavirus-related concerns.
“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.”
Some of the notable items included in the guidance include:
- Employers should provide appropriate face coverings to employees at no cost and be sure those face coverings are either surgical masks or cloth coverings composed of at least two layers.
- It reaffirms the EEOC’s position that employers should not unnecessarily require a COVID-19 negative test result or a doctor’s note as a prerequisite to return to work because of the significant delays that requirement may cause for both employers and employees.
- Employers should not distinguish between workers who are vaccinated and those who are not. For instance, vaccinated workers should not be excused from wearing masks given the uncertainty as to whether those persons can still transmit the virus.
- It suggests that businesses create “an anonymous process for workers to voice concerns about COVID-19-related hazards” and take other steps to protect employees against retaliation.
There are many more new or modified recommendations included in the guidance, so be sure to have someone in your organization do a full review to ensure you are in compliance as applicable for your business.
Additionally, President Biden has ordered the agency to consider whether “any emergency temporary standards on COVID-19” are necessary and issue any such standards by March 15. That means employers should expect that some of the provisions of this guidance will become mandatory standards that OSHA issues on or before March 15.
OSHA Increases Maximums on Civil Penalties in 2021
The new OSHA guidance comes just a few weeks after OSHA announced a cost-of-living adjustment to civil penalty amounts for 2021. OSHA’s maximum penalties for serious and other-than-serious violations will increase from $13,494 per violation to $13,653 per violation. The maximum penalty for willful or repeated violations will increase from $134,937 per violation to $136,532 per violation. The Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2021 final rule was effective on January 15, 2021, and the increased penalty levels apply to any penalties assessed after that date.
CDC Releases Toolkits for Vaccine Communications
According to the latest figures released by the U.S. Centers for Disease Control and Prevention, more than 33 million doses of COVID-19 vaccine have been administered in the United States to date.
Meanwhile, those doses represent only 6.4 million Americans receiving full, two-dose vaccinations, while more than 27 million people have received only the first of two vaccine doses required, the CDC reported.
According to the CDC, the new Toolkit is designed for “employers of essential workers, including police officers, firefighters, and people working in education, childcare centers, and grocery stores.” The Toolkit is intended to help employers educate employees about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.
The Toolkit includes key messages about COVID-19 vaccines that employers can use to educate employees, slides employers can use for informational meetings, a sample newsletter businesses can send to their employees, a FAQ document businesses can add to their other posters and notices, sample social media posts and many other items.
Interestingly, the Toolkit includes stickers that can be given to employees to wear when the are vaccinated. However, think carefully before you hand these out. If the decision to be vaccinated is optional, then employees have the right to keep their vaccination decision private and requiring employees wear stickers could have serious implications.
There are other existing Tool Kits available on the CDC website, including the COVID-19 Vaccination Communication Toolkit for Medical Centers, Pharmacies, and Clinicians, the Recipient Education Toolkit for Healthcare Professionals and Pharmacists, the Long-Term Care Facility Toolkit, and the COVID-19 Vaccine Communication Toolkit for Community-Based Organizations.
Should you have any questions about new OSHA guidelines or establishing vaccination policies in your business or would like to schedule an initial consultation about another matter, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.
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