Is OSHA’s New Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace anything new?

On January 29, 2021, OSHA issued “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”  The Guidance provides the following additional information on key COVID-19 prevention measures:

• separating infected and potentially infected workers;
• implementing physical distancing measures;
• installing barriers where physical distancing cannot be maintained;
• using face coverings and other PPE;
• requiring workers who have been vaccinated to continue following protective measures;
• improving ventilation;
• providing supplies for good hygiene; and
• implementing routine cleaning and disinfection.

However, the guidance makes clear that “it creates no new legal obligations”; rather, “it contains recommendations as well as descriptions of existing mandatory safety and health standards” that are “advisory in nature, informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.”

The Guidance follows a January 21, 2021, Executive Order signed by President Biden on Protecting Worker Health and Safety.  That Executive Order required the Secretary of Labor to issue revised OSHA guidance to employers on workplace safety during COVID-19, and to launch a national program to focus OSHA enforcement efforts related to COVID-19 violations that pose the largest risk to workers or are contrary to anti-retaliation principles.

The information contained in the new OSHA guidance is likely not new to employers, as it largely reiterates mandates or recommendations from the Michigan Department of Health and Human Services (MDHHS), MIOSHA, local health departments, local executive orders, and CDC guidelines. For example, the guidance recommends implementing a workplace COVID-19 prevention program to mitigate the spread of COVID-19 at work.  But Michigan employers should already have such COVID-19 preparedness and response plans, as they were first mandated under Governor Whitmer’s Executive Orders (EOs) and then under MIOSHA COVID-19 Emergency Rules promulgated after the EOs were found unconstitutional.  OSHA’s recommendations for the COVID-19 prevention program are nearly identical to the MIOSHA Rules. 

OSHA now recommends that employers, as part of their COVID-19 prevention plan, make the COVID-19 vaccination available at no cost to all eligible employees and provide information and training to employees on the benefits and safety of vaccinations.  OSHA also notes that workers who are vaccinated must continue to follow the same protective measures (i.e., wearing a face covering and socially distancing). 

OSHA’s new Guidance also provides timeline recommendations for isolating workers who are infected or potentially infected consistent with the CDC’s updated isolation guidelines:

• Workers with symptoms who think or know they had COVID-19 can return to work after at least 10 days since symptoms first appeared and at least 24 hours with no fever without fever-reducing medication and other symptoms of COVID-19 are improving.
• Workers who have been exposed to COVID-19, should quarantine for 14 days. However, local public health department may consider ending quarantine after day 10 without testing and no symptoms, or day 7 after a negative test result (test must occur on day 5 or later).

This guidance is also already required by the Michigan Covid-19 Rights Act, MCL 419.401 et seq, which mandates specific rules for employers to follow regarding COVID-19 related quarantines and prohibits employers from retaliating against those employees for complying with such provision.  The law, as amended on December 29, 2020 refers to the revised CDC isolation guidance and removes the requirement that employees who have been in close contact with someone displaying COVID-19 symptoms remain out of work for up to 14 days.

Since last March, the Butzel Long Labor & Employment team has been helping employers navigate through ever-changing COVID-19 mandates, helping employers draft and implement protocols to best protect the business and its employees, and counseling employers with respect to COVID-19 related complaints or requests from individual employees. Our team is ready to help should you or your business have any questions or need individualized guidance.

Sarah Nirenberg
248.258.2919
nirenberg@butzel.com

Brett Miller
313.225.5316
millerbr@butzel.com