COVID-19: Are Your Workplace Safety Compliance Policies Medium-Rare or Well-Done?


By David C. Rybicki, Barry M. Hartman, Leann M. Walsh and Nancy C. Iheanacho, K&L Gates

via The National Law Review - February 17, 2021


On 21 January 2021, President Biden issued an executive order directing the Occupational Safety and Health Administration (OSHA) Assistant Secretary of Labor for Occupational Safety and Health to issue new guidance for employers in an effort to assure more stringent worker safety standards to better protect workers from COVID-19.1 While some existing OSHA standards, such as those for personal protective equipment2 and respiratory protection,3 could be applied in a way to help protect workers from exposure to COVID-19, OSHA has not yet issued a rule that specifically addresses how to control hazards posed by COVID-19. The executive order also requires OSHA to consider whether any emergency temporary standard on COVID-19 is needed and, if so, to issue it by 15 March 2021. This new guidance is likely the groundwork for more robust enforcement of, and investigations into, COVID-19 workplace safety.


The new guidance, issued on 29 January 2021, focuses on mitigating and preventing the spread of COVID-19 in the workplace and provides insights into OSHA抯 enforcement priorities.4 While the guidance does not create new legal obligations or formal agency regulations梚.e., employers are not legally obligated to comply梚t may signal what a reasonable employer must do to maintain a workplace compliant with the general duty clause: 揻ree from recognized hazards that are causing or are likely to cause death or serious physical harm?to employees.5 The guidance identifies measures that OSHA workplace inspectors will look for and indicates that a fulsome hazard assessment will be the foundational evidence of an employer抯 compliance with its general duty obligations.


The new guidance tracks with previously issued recommendations from the Centers for Disease Control and Prevention about workplace safety measures relating to COVID-19. However, the following measures are of note in the new OSHA guidance...


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