Audit, Compliance and Risk Blog

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers for copying with evolving situations. On June 10, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for management of workplace COVID-19 risks. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE).

As vaccinations begin to bring the COVID-19 pandemic under control, more employers are moving to reoccupy and reopen workplace areas, many of which have been closed for months. During those times, residual moisture from reduced space conditioning or under-maintained facilities may have increased the possibility of mold infestations, which might endanger people returning to your workplace. This risk makes it a good time to review basic approaches to mold remediation. The remainder of this note reviews guidance from the US Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and Environmental Protection Agency (EPA).

One of the most talked about topics when it comes to the scheduled roll out of the COVID-19 vaccine this year is whether an employer is entitled to require its employees to receive the vaccine in order to remain at or return to the workplace.

It’s a multifaceted issue, and it deserves fulsome consideration when discussing the important role employers could play in the national vaccination campaign, which is a key component of the fight against the spread of COVID-19 within an employer’s workplace and more broadly. However, that is not the only interest at play. An employer’s obligation to provide a safe workplace must be balanced with employees’ potentially competing interests, such as the fundamental freedom to make inherently personal choices about one’s own body. This can include competing rights relate to health or religious beliefs and trigger protection under human rights legislation.

Many of President Biden’s immediate priorities relate to the federal government’s response to the COVID-19 pandemic. These include worker protection measures, which generally fall within the purview of the Occupational Safety and Health Administration (OSHA). Executive Order (EO) 13999 of January 21, 2021 (Executive Order on Protecting Worker Health and Safety) directs OSHA to rapidly enhance COVID-19 protection activities. The EO directed OSHA to update worker protection guidance to employers within two weeks, which OSHA met by publishing “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which I discussed HERE.

After a year of the COVID-19 pandemic, vaccines are finally in distribution and beginning to affect health and safety measures underway by agencies, employers and the public. On March 8, 2021, the Centers for Disease Control and Prevention (CDC) issued “Interim Public Health Recommendations for Fully Vaccinated People.” These new guidelines are directed to individuals, but employers should consider their implications when deciding what to tell their individual employees and customers how to approach the business. The short version: organizations shouldn’t ease up on protective measures undertaken in compliance with guidance from CDC, the Occupational Safety and Health Administration (OSHA) and other agencies. I provide more detailed discussion in the remainder of this note.

Among President Biden’s flurry of first-week executive orders (EOs) is one entitled “Protecting the Federal Workplace and Requiring Mask-Wearing” (EO 13991). This EO states the administration’s policy “It is the policy of my Administration to halt the spread of … COVID–19 by relying on the best available data and science-based public health measures. Such measures include wearing masks when around others, physical distancing, and other related precautions recommended by the Centers for Disease Control and Prevention (CDC).” The EO, and guidance to agencies issued by the Office of Management and Budget (OMB), provide directions to federal agencies. They can also provide useful guidance to non-federal organizations in which most employees work in office settings. The rest of this note discusses a January 24, 2021 OMB memorandum to agency heads entitled “COVID-19 Safe Federal Workplace: Agency Model Safety Principles,” which incorporates CDC guidance.

For nearly a year now, the Occupational Safety and Health Administration (OSHA) and other agencies have been issuing guidance to employers regarding COIVD-19, including identification, protection, and back-to-work procedures. One of incoming President Biden’s first Executive Orders (EO 13999 of January 21, 2021) directs OSHA to issue updated worker protection guidance to employers within two weeks. On January 29, OSHA met this requirement by publishing “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which it explains is intended for employers and workers to use to identify risks and plan responses. The remainder of this note summarizes OSHA’s new guidance.

Now that vaccinations against COVID-19 infections are becoming available, employer responses to the pandemic will include when to recommend, support, or even require employee vaccinations. While workplace safety considerations might support all these efforts, the Equal Employment Opportunity Commission (EEOC) has just issued a reminder that the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 require employers to craft their vaccination policies in ways that won’t violate anti-discrimination provisions. The remainder of this note discusses EEOC guidance published on December 16, 2020.

The US Occupational Safety and Health Administration (OSHA) requires employers to ensure workplace air quality, as part of the agency’s broad mission to protect workers’ safety and health. Instead of a single comprehensive standard, OSHA incorporates air-related issues into standards requiring employers to consider whether workplace conditions might require respiratory protections (which I discussed HERE), and additional standards addressing routine workplace air contaminants (which I discussed HERE), and special hazards of confined spaces (which I discussed HERE). OSHA also applies specific ventilation standards in workplaces that involve abrasive blasting; grinding, polishing, and buffing operations; and spray finishing operations.

The US Occupational Safety and Health Administration (OSHA) requires that employees wear personal protective equipment (PPE) necessary to help protect them against identified workplace hazards. This equipment may protect against physical hazards—hard hats, safety glasses, tinted goggles, steel-toed shoes—or may protect against health hazards—respirators, self-contained breathing apparatus, gloves. OSHA does not formally consider cloth facemasks to be PPE, but does consider them “source control” that may prevent an infected person from spreading the virus – which means that they do provide protection to co-workers. OSHA and most other health and safety agencies therefore do at least recommend masks, and some require them in specified settings. The remainder of this note discusses agencies’ formal provisions regarding masks.