February 10, 2021

OSHA Update: Biden Administration Signals New Employer COVID-19 Obligations

Holland & Knight Alert
Howard Sokol | Gina A. Fonte | Matthew W. Sloane

Highlights

  • President Joe Biden issued an executive order on Jan. 21, 2021, that directed the Occupational Safety and Health Administration (OSHA) to examine the need for new workplace safety guidelines, including considering COVID-19 specific OSHA standards.
  • In response, OSHA has issued its first new directive and guidance to employers for workplace safety.
  • This Holland & Knight alert addresses the key components of the OSHA updates and what to expect moving forward.

President Joe Biden issued an executive order on Jan. 21, 2021, directed at the health and safety of American workers and workplace safety. Within days, on Jan. 29, 2021, the Occupational Safety and Health Administration (OSHA) issued new guidance in response to the executive order.

Additionally, as part of the executive order, the Biden Administration directed OSHA to examine the need for revised or additional workplace safety standards in response to the continuing COVID-19 pandemic. Importantly, the executive order directed OSHA to conduct an independent review and consider the need for a new COVID-19 specific standard. The Biden Administration has directed OSHA to consider and issue any new COVID-19 requirements or standards by March 15, 2021.

OSHA's January 2021 Guidance

OSHA's January 2021 guidance largely reinforces the previously issued safety guidance issued by the agency under the previous administration. For example, the guidance reiterates that proper COVID-19 prevention programs include proper safety protocols, installing barriers, isolating workers who show symptoms of COVID-19 and continuing COVID-19 testing procedures. Review of the new guidance, issued as a supplement to previous OSHA guidance addressing best practices, is helpful for employers to utilize as a non-binding checklist when comparing it to their own COVID-19 prevention protocols. Further, OSHA noted that all standards to protect employees from infection remain in place, including personal protective equipment, sanitation, respiratory protection and bloodborne pathogens.

In addition, OSHA offers new information and guidance for COVID-19 vaccines. As more employees become vaccinated, employers will soon find themselves facing a workforce at varying stages of vaccination. For example, some employees will be fully vaccinated while others will not have yet received their first doses. OSHA's Jan. 29, 2021 guidance makes it clear that employers may not, with regard to COVID-19 safety protocols, distinguish between employees who have and have not received the vaccine. All employees, regardless of their vaccination history, should continue to fully abide by COVID-19 prevention protocols, including the wearing of masks or facial coverings and the observance of social distancing protocols. OSHA made a point to emphasize the still-in-place recommendations to prevent the spread of COVID-19, particularly because the Centers for Disease Control and Prevention has noted that vaccinated individuals may still be able spread the virus. In the absence of evidence to the contrary, acting out of an abundance of caution in this regard is the recommended guidance.

Next Steps

Pursuant to the Biden Administration's Executive Order, employers should continue to monitor OSHA's guidance up to and including March 15, 2021. OSHA may, as it did on Jan. 29, release additional guidance as it is developed, rather than publish a single release. For more information or assistance on this topic or with any other OSHA matters, please contact the authors or other members of Holland & Knight's OSHA and Workplace Safety Team.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.


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