Biden Administration Issues New OSHA COVID-19 Guidance and Signals More to Come

February 1, 2021 Advisory

On Jan. 21, 2021, President Biden issued an executive order requiring new COVID-19 guidance to be issued for employers. In response, the Occupational Safety and Health Administration (OSHA) issued the new guidance on Friday, Jan. 29, 2021. The guidance is not significantly different from previous OSHA or CDC guidance. It states that additional guidance will be issued, and that the existing industry-specific guidance already on OSHA’s website will be updated over time, which signals more to come.

OSHA guidance does not have the force of law, but an employer who does not act in a manner consistent with OSHA guidance is more likely to be cited by OSHA for violating an OSHA standard, such as the personal protective equipment standard, or the General Duty Clause, as compared to an employer who follows the guidance. The prior administration received some criticism for not issuing more citations for COVID-19-related issues, and it is expected that the new administration will increasingly pursue enforcement actions for COVID-19 issues. Employers should watch closely for additional OSHA guidance.

Additionally, under the Jan. 21 executive order, OSHA has until March 15 to consider implementing an emergency COVID-19 standard, and to issue the standard within that time if it determines a standard is warranted. Unlike guidance, such a standard would have the effect of law. It seems likely that such a standard will be issued. Several states have already issued their own worker safety COVID-19 standards, so possible models already exist.

Some highlights of the new OSHA guidance include:

  • a recommendation that employees who have been vaccinated still wear a face covering and maintain social distance because it is not yet known “how vaccination affects transmissibility”;
  • a recommendation to make the COVID-19 vaccine available to employees at no cost;
  • encouragement of employers to include employees and their representatives in the development of their prevention programs, and assign a workplace coordinator. It notes that workers with disabilities may be legally entitled to “reasonable accommodations under the ADA”;
  • a recommendation that employers supply employees with face coverings – prior OSHA guidance had recommended that they be used, but did not specify who should supply; and
  • potential ventilation improvements that can be made. It is predicted that ventilation is one area that OSHA will emphasize under the new administration. Employers who have not at least evaluated changes in their ventilation systems should do so now.

Many employers have been led to believe that they are required to record every COVID-19 case experienced by their employees on their 300 log under the OSHA recordkeeping standard, and that they are required to report all COVID-19 hospitalizations and deaths of their employees to OSHA under the regulation that requires reporting to OSHA of all workplace fatalities and hospitalizations. However, employers need to be careful and should avoid over-reporting. Employers are only required to record or report such confirmed cases if they are “work-related,” in other words, if the virus was likely contracted in the workplace. The Jan. 28 guidance reiterates that concept. OSHA’s guidance on May 19, 2020, which is still available on OSHA’s website, notes the difficulty in determining where an employee contracted the virus. The May 2020 guidance states that it will be sufficient, in most circumstances, for the employer to ask the employee:

  1. where the employee believes he/she contracted the virus;
  2. while respecting employee privacy, discussing with the employee his/her work and out-of-work activities that may have led to the illness; and
  3. review the employee’s work environment for potential COVID-19 exposure. The review should be informed by any other instances of workers in that environment who have contracted the virus. The employer should also consider case experience in the community.

The May 2020 guidance states that if, after a reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role in the case, the case is not required to be recorded on the 300 log. The same analysis applies in determining whether a hospitalization or fatality due to COVID-19 is required to be reported.

Because OSHA is likely to ramp up enforcement under the new administration, and because reports to OSHA often result in a visit to the workplace by OSHA, employers should be cautious when recording or reporting cases if they are unable to determine where the employee contracted the virus.

Contact Us
  • Worldwide
  • Boston, MA
  • Chicago, IL
  • Denver, CO
  • Dublin, Ireland
  • Edwardsville, IL
  • Jefferson City, MO
  • Kansas City, MO
  • Las Vegas, NV
  • London, England
  • Miami, FL
  • New York, NY
  • Orange County, CA
  • Philadelphia, PA
  • Princeton, NJ
  • Salt Lake City, UT
  • St. Louis, MO
  • Washington, D.C.
  • Wilmington, DE
Worldwide
abstract image of world map
Boston, MA
800 Boylston St.
30th Floor
Boston, MA 02199
Google Maps
Boston, Massachusetts
Chicago, IL
100 North Riverside Plaza
Suite 1500
Chicago, IL 60606-1520
Google Maps
Chicago, Illinois
Denver, CO
4643 S. Ulster St.
Suite 800
Denver, CO 80237
Google Maps
Denver, Colorado
Dublin, Ireland
Fitzwilliam Hall, Fitzwilliam Place
Dublin 2, Ireland
Google Maps
Edwardsville, IL
115 N. Second St.
Edwardsville, IL 62025
Google Maps
Edwardsville, Illinois
Jefferson City, MO
101 E. High St.
First Floor
Jefferson City, MO 65101
Google Maps
Jefferson City, Missouri
Kansas City, MO
2345 Grand Blvd.
Suite 1500
Kansas City, MO 64108
Google Maps
Kansas City, Missouri
Las Vegas, NV
7160 Rafael Rivera Way
Suite 320
Las Vegas, NV 89113
Google Maps
Las Vegas, Nevada
London, England
Royal College of Surgeons of England
38-43 Lincoln’s Inn Fields
London, WC2A 3PE
Google Maps
Miami, FL
355 Alhambra Circle
Suite 1200
Coral Gables, FL 33134
Google Maps
Photo of Miami, Florida
New York, NY
7 Times Square, 44th Floor
New York, NY 10036
Google Maps
New York City skyline
Orange County, CA
19800 MacArthur Boulevard
Suite 300
Irvine, CA 92612
Google Maps
Philadelphia, PA
2005 Market Street
29th Floor, One Commerce Square
Philadelphia, PA 19103
Google Maps
Philadelphia, Pennsylvania
Princeton, NJ
100 Overlook Center
Second Floor
Princeton, NJ 08540
Google Maps
Princeton, New Jersey
Salt Lake City, UT
222 South Main St.
Suite 1830
Salt Lake City, UT 84101
Google Maps
Salt Lake City, Utah
St. Louis, MO
7700 Forsyth Blvd.
Suite 1800
St. Louis, MO 63105
Google Maps
St. Louis, Missouri
Washington, D.C.
1717 Pennsylvania Avenue NW
Suite 400
Washington, DC 20006
Google Maps
Photo of Washington, D.C. with the Capitol in the foreground and Washington Monument in the background.
Wilmington, DE
1007 North Market Street
Wilmington, DE 19801
Google Maps
Wilmington, Delaware