What Might Be in a Federal OSHA COVID-19 Standard?

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By Joe Souza

On January 21, 2021, President Joe Biden signed an Executive Order directing the Occupational Safety and Health Administration (OSHA) to consider an emergency temporary standard (ETS) related to COVID-19. If the ETS is deemed necessary, the Order, titled “Protecting Worker Health and Safety,” calls on OSHA to issue it by March 15, today. What might employers expect if an ETS is issued?

The Order also directed OSHA to update COVID safety recommendations for businesses within 2 weeks, review its enforcement efforts, and study whether an ETS is necessary. If deemed necessary, the agency must issue the emergency standard by mid-March.

The proposed standard would likely require employers to create a company-specific plan to minimize worker exposure to COVID-19. The rule is expected to mandate mask-wearing, social distancing, hand-washing breaks, and communication procedures for workers during outbreaks. The new standard, which many feel is long overdue, is expected to protect the most at-risk workers.

The Order has already resulted in the launch of a National Emphasis Program (NEP) on COVID-19 “to focus enforcement resources on workplace violations that put the largest number of workers at serious risk,” which OSHA announced on Friday, March 12. NEPs aim to protect workers’ health and safety in specific industries that present high risks to people and the environment. OSHA currently has 13 additional NEPs that focus on hazards such as combustible dust, hazardous machinery, and silica.

States with COVID-19 Standards

Many states have developed their own COVID-19 standards, leading to a patchwork of rules and enforcement. Here’s a sampling of where three states have landed.

The California Plan, AB 686, requires employers to develop a virus prevention program. It also requires employers to ask employees to report symptoms and outline policies that accommodate high-risk workers. The standard allows Cal/OSHA to shut down a facility or part of a business when it detects imminent hazards and immediately issue serious violations.

Virginia, the first state to adopt COVID-19 standards, requires mask-wearing, social distancing, access to hand-washing facilities or hand sanitizer, frequent cleaning of high-contact surfaces, and communication procedures when a worker tests positive for COVID-19, as well as requires positive workers to remain out of work for 10 days or acquire 2 consecutive negative tests before returning to work.

Michigan’s standard requires employers to create a written exposure control plan that includes exposure determination and outlines measures that will be taken to prevent employee exposure to COVID-19, including:

  • Engineering controls
  • Administrative controls
  • Hand hygiene and environmental surface disinfection
  • Personal protective equipment
  • Health surveillance
  • Training

So, What Would a Nationwide Virus-Specific Rule Mean for Employers?

Although unclear at the moment, a nationwide standard would likely lean upon rules the states mentioned above have already developed and implemented. Companies will probably be required to create company-specific COVID-19 prevention plans outlining how they comply with OSHA’s new regulation. We expect that it would cover the following commonsense topics:

  • Hand-washing requirements
  • Limited contact among workers (social distancing)
  • Frequent cleaning and disinfecting routinely touched surfaces and tools
  • Ventilation
  • Stay-at-home rules if someone in a worker’s household is sick
  • Employee screening
  • Communication to staff should a worker test positive

A nationwide standard would help provide consistent communication to workers, helping them understand what their employers are required to do to keep them safe and what their rights are under the new standard. Companies that choose to ignore the new standard will risk monetary fines—potentially quite large ones. Previous fines issued because of inadequate COVID-19 protocols have been relatively low—an issue that OSHA, under the Trump administration, has received much criticism for.

Although OSHA does not yet have a standard that specifically covers COVID-19, that may change today. In the meantime, OSHA has developed helpful guidelines you can view here; until a formal federal standard is released, employers should follow these guidelines to keep workers and workplaces safe.

This article appears in a slightly different format on KPA’s blog.