Skip to main content

COVID-19 Executive Orders and Updated OSHA Guidance

Potential Liability for Employers Who Do Not have Formal Plans in Place.

On January 21, 2021, an Executive Order (EO) was signed on Protecting Worker Health and Safety, specifically calling for “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” While many employers already have infection control plans in place in light of the global pandemic, this EO is the first concerted federal effort that puts an emphasis on workplace safety and enforcement action by the Occupational Safety and Health Administration (OSHA) during this pandemic. It calls for, among other things, revised guidance from OSHA and consideration of the development of Emergency Temporary Standards (ETS) and likely their enforcement through a national emphasis campaign. Although this EO could be construed more as a “call-to-arms” rather than any concrete promulgated policy change, the inclusion of ETS could hint at a potential increase in regulatory liability throughout the American economy.

OSHA released their updated COVID-19 guidance on January 29, 2021, likely in response to the aforementioned EO. The new OSHA document lists both the new and existing guidance based on science and best practices that are well known in industry and similar to, if not the same as, the guidelines from the Centers for Disease Control and Prevention (CDC) and the American Industrial Hygiene Association (AIHA). An interesting inclusion in this OSHA guidance document are citations of current regulatory standards such as the Occupational Safety and Health Act General Duty Clause, Section 5(a)(1), which requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm, as well as other promulgated occupational, safety and health standards that could apply to COVID-19 hazards. The use of the General Duty Clause may open up employers to regulatory liability now, in the absence of an ETS.

It may be possible that an ETS could be enacted by OSHA under their authorization to protect workers “in grave danger due to…new hazards that [require] an emergency standard…to protect them.” OSHA would then publish the ETS in the Federal Register, where it also would serve as a proposed permanent standard. The ETS would then be subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an ETS can be challenged in an appropriate U.S. Court of Appeals. Any appeal does not delay the enforcement of a standard unless the Court specifically orders it.

A key statement in the new OSHA guidance is that implementing a “COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.” To read between the lines here, developing and implementing such a plan might be your best way to mitigate your regulatory liability under the General Duty Clause and any potential ETS. The guidance provides a list of elements that should be included in any prevention program and probably be considered the minimum “standard of care” for any plans that will be developed in response to the EO and new OSHA guidance. It is important that these plans be developed and updated as necessary by a knowledgeable and qualified occupational safety and health professional and/or an infection control specialist. Individuals certified in these areas will provide comfort to employees and may reduce potential regulatory liability down the road. If you have questions on the newly released OHSA guidance or would like more information on implementing a COVID-19 prevention program, Partner has such qualified individuals that can help you and your business protect your workers and mitigate potential liability.