Get a Jump on OSHA’s COVID-19 Emergency Temporary Standard

By Randy Clayton on Feb 25, 2021
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United States Department of Labor OSHA Division

News Update (May 7, 2021): In April, responding to President Joe Biden's executive order, OSHA submitted a draft of the Emergency Temporary Standard (ETS) to the White House for review. However, at this time, OSHA has stated there currently is no target date for issuing an ETO related to COVID-19.  This may be in part to a reported deficit of approximately 200 OSHA inspectors, which would make it difficult for OSHA to investigate every complaint.

Amid ongoing efforts to stop the spread of COVID-19, President Joe Biden on Jan. 21 ordered the Occupational Safety and Health Administration (OSHA) to consider emergency temporary standards to reduce the risk of employees contracting COVID-19 in the workplace.

If OSHA decides emergency temporary standards, “including with respect to masks in the workplace,” are necessary, Biden’s executive order directs that the standards must be issued by March 15.

How Could OSHA's Emergency Temporary Standards Affect Employers?

Kansas and Missouri do not require employers to have written COVID-19 plans. But, according to a Jan. 27 report by national labor and employment law firm Fisher Phillips, OSHA-approved standards already have been enacted by approximately 20 states, including California, Michigan, Oregon and Virginia. Because Virginia’s plan falls in the middle in terms of stringency, it may serve as a model for federal standards. That plan requires many employers to, among other things:

  • Adopt a written COVID-19 response plan,
  • Train employees on COVID-19 safe practices,
  • Assess how much employees are at risk for exposure to COVID-19 in their workplaces,
  • Provide PPE and face coverings,
  • Notify government agencies and other entities of positive exposures and
  • Assess existing sick leave policies, number of shifts, etc., to determine if changing those policies will help prevent employee exposure to COVID-19.

In a Jan. 13 blog post, employment law firm Ogletree Deakins suggested that an OSHA temporary standard might contain some or all of the following requirements:

  • Conduct a workplace exposure assessment,
  • Develop a written COVID-19 preparedness and response plan that includes requirements for social distancing, masks, worker notice and workplace sanitizing,
  • Establish guidelines for use of personal protective equipment and/or engineering controls when social distancing is not feasible,
  • Implement employee, contractor, and visitor screening procedures,
  • Conduct employee training regarding safe work procedures and
  • Report positive exposures to OSHA.

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What Can Employers Do Now to Get Ready for a Federal Emergency COVID-19 Standard?

Considering that numerous requirements are likely to emerge from a federal emergency COVID-19 standard, employers should take three steps now to ensure that they will be in compliance:

  1. Train employees on COVID-policies that already are in place, whether verbal or written. Over the last year, many employers have created policies – or at least basic protocols – to mitigate the risk that employees or anyone else who enters the worksite will be exposed to COVID-19. If your workplace has done this, remind employees about the processes that already exist. Providing training around these policies helps demonstrate compliance with any future OSHA requirements. In addition, when employees understand that you have established policies to ensure their safety, it will increase their adherence to those policies and make them feel more confident about their ability to avoid COVID exposure at work. 
  2. Create a written COVID-19 policy. Because it’s likely the Virginia plan will serve as the model for the federal standard, adhering to its requirements is a pretty safe bet for employers who are preparing their own COVID-19 plans.
  3. Conduct a PPE hazard assessment. The emergency temporary standard will probably mandate that you assess the chance employees may be exposed to COVID-19 in your workplace. To proactively meet this likelihood – and comply with regulations OSHA already has in place – you should undertake a written PPE hazard assessment to examine the risk each employee task may pose. Going through this procedure will help keep employees safe and demonstrate to OSHA that you are committed to workplace safety.

Most employers already understand the importance of providing a safe environment for their employees to work in. But as they face the probability of a federal emergency standard for COVID-19, it’s more important than ever for businesses to root out workplace safety hazards.

Written by Randy Clayton

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