OSHA Implements Program to Address COVID-19 Workplace Safety

On January 21, 2021, President Biden signed the “Executive Order on Protecting Worker Health and Safety.” This Executive Order (EO) instructed OSHA to assess whether the agency should revise COVID-19 safety guidelines to ensure workers’ safety during the pandemic. The EO also directed the Secretary of Labor to determine “whether any emergency temporary standards” regarding COVID-19 workplace safety—such as mandating masks—are necessary, and if so, to issue the emergency standards by March 15, 2021.  

Although emergency temporary standards have yet to be issued, on March 12, 2021, OSHA released a directive regarding the implementation of a National Emphasis Program (NEP) that is designed to prevent COVID-19 workplace infections for “employees in high-hazard industries or work tasks.” High-hazard industries or work tasks include those that place the “largest number of workers at serious risk” of contracting the illness, primarily those with “close contact” for exposure to COVID-19. The list of industries and tasks include hospitals, health-care providers, assisted living facilities, and non-health care companies such as meatpacking and processing and warehousing facilities.  

The NEP intends to accomplish its goal through employer outreach plans, assistance with compliance to the program, and targeted inspections that commenced on March 26, 2021. The NEP also includes retaliation protections for workers who allege that employers are failing to protect them from risks of exposure to the virus. According to the directive, incidents of retaliation will be “promptly” referred to the Whistleblower Protection Program.  

Michael T. Taylor, workplace safety attorney at Greenberg Traurig and Chair of the firm’s OSHA Practice Group, stated that avoiding OSHA citations can be accomplished through: 

• compliance with CDC and OSHA guidelines; 
• maintaining proper illness and injury logs; 
• reviewing the logs to ensure accuracy of information, especially for workers who tested positive for the virus;  

• providing masks and other respiratory equipment; 
• maintaining social distancing between workers; and 
• management of risk assessment programs. 

OSHA’s emergency temporary standards are already overdue, having missed the March 15, 2021 deadline set by President Biden’s executive order. As the pandemic continues, nationwide OSHA guidelines are clearly necessary. However, the growing number of individuals becoming vaccinated against the virus is encouraging. According to the CDC, there have been 146,000,000 vaccines administered in the U.S. Also, reported cases have mostly been trending downward during the past 2 months. Even more promising is that the Moderna and Pfizer vaccines appear to be proving 80% to 90% effective against infection.