On January 21, 2021, President Biden signed an Executive Order directing OSHA to consider emergency temporary standards related to COVID-19. If the emergency temporary standards are deemed necessary, the order, titled “Protecting Worker Health and Safety,” calls on OSHA to issue them by March 15th. The order also directs OSHA to update COVID safety recommendations for businesses within two weeks, review its enforcement efforts, and study whether an emergency temporary standard is necessary. If deemed necessary, the agency must issue the emergency standard by mid-March.
The proposed standard would likely require employers to create a company-specific plan to minimize worker exposure to COVID-19. The rule is expected to mandate mask-wearing, social distancing, hand-washing breaks, and communication procedures with workers during outbreaks. The new standard, who many feel is long overdue, is expected to protect the most at-risk workers.
Additionally, the order could mean the launch of a National Emphasis Program on COVID-19 “to focus enforcement resources on workplace violations that put the largest number of workers at serious risk.” A National Emphasis Program (NEP) aims to protect workers’ health and safety in specific industries that have present high risks to people and the environment. OSHA currently has 13 NEPs that focus on hazards such as combustible dust, hazardous machinery, and silica.
States with COVID-19 Standards
Many states have developed their own COVID-19 standards, leading to a patchwork of rules and enforcement. Here’s a sampling of where three states have landed:
The California Plan, AB 686, requires employers to develop a virus prevention program. It also requires employers to ask employees to report symptoms and outline policies that accommodate high-risk workers. The standard allows Cal/OSHA to shut down a facility or part of a business when it detects imminent hazards and immediately issue serious violations.
Virginia, the first state to adopt COVID-19 standards, requires mask-wearing, social distancing, access to hand-washing facilities or hand sanitizer, frequent cleaning of high-contact surfaces, communication procedures when a worker tests positive for COVID-19, and requires positive workers to remain out of work for ten days or acquire two consecutive negative tests before returning to work.
Michigan’s standard requires employers to create a written exposure control plan that includes exposure determination and outlines measures that will be taken to prevent employee exposure to COVID-19, including:
- Engineering controls
- Administrative controls
- Hand hygiene and environmental surface disinfection
- Personal protective equipment
- Health surveillance
So, what would a nationwide virus-specific rule mean to employers?
Although unclear at the moment, a nationwide standard would likely lean upon rules that the states mentioned above have already developed and implemented. Companies will probably be required to create company-specific COVID-19 prevention plans outlining how they comply with OSHA’s new regulation. We expect that it would cover the following common-sense topics:
- Hand washing requirements
- Limited contact among workers (social distancing)
- Frequent cleaning and disinfecting routinely touched surfaces and tools
- Stay at home rules if someone in a worker’s household is sick
- Employee screening
- Communication to staff should a worker test positive
A nationwide standard would help provide consistent communication to workers – helping them understand what their employers are required to do to keep them safe and what their rights are under the new standard. Companies who chose to ignore the new standard will be risking monetary fines – and potentially quite large ones. Previous fines issued because of inadequate COVID-19 protocols have been relatively low—an issue which OSHA, under the Trump Administration, has received much criticism.
Although OSHA does not yet have a standard that specifically covers COVID-19, OSHA has developed helpful guidelines: https://www.osha.gov/coronavirus.
Until a formal federal standard is released, employers should follow these guidelines to keep workers and workplaces safe.
We’re Here to Help
KPA can get your workforce up to speed with these new standards quickly and cost-effectively. Our COVID-19 Safety Program is designed to help you ensure compliance with state or national (once they’re ready) standards—and stay on top of any future regulatory changes.