OSHA on Covid Compliance at Work

The Occupational Health & Safety Administration has published guidance on how companies should mitigate the spread of covid in the workplace — and wouldn’t know it, the material looks an awful lot like a compliance program.

The document was published on Friday and should be no surprise; the Biden Administration had made clear that OSHA would be taking stronger positions on how businesses should protect employees during the pandemic. This walk-through of a company’s duties to provide a safe workplace is just the first step in that direction.

The first 20 percent of the material is aimed more at employees, outlining precautions they should take such as wearing a mask, keeping distance from coworkers, and washing hands frequently. OK, nothing new there.

The rest of the material is what compliance professionals will want to read. The guidance sends a clear message that it expects businesses to have a covid management program. The key paragraph is this:

Employers should implement COVID-19 Prevention Programs in the workplace. The most effective programs engage workers and their union or other representatives in the program’s development, and include the following key elements: conducting a hazard assessment; identifying a combination of measures that limit the spread of COVID-19 in the workplace; adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace; and implementing protections from retaliation for workers who raise COVID-19 related concerns.

Let’s translate those elements into compliance-speak: risk assessment; policies and procedures; internal controls; internal reporting. The guidance goes into further details for each of those elements, but clearly OSHA is telling businesses that they need to establish a program to comply with these expectations.

More Detail on Covid Compliance

First, the business should assign a workplace coordinator who will be responsible for covid issues on the company’s behalf. I’ll be curious to see how this point is implemented in practice, since the measures a company will need to take are kinda tricky to bundle under one person. Some relate to policy development, which could be HR; others relate to internal controls like plexiglass barriers or ventilation systems, which typically fall under environmental, health & safety. And protecting employees from retaliation for speaking up about covid concerns — well, we all know who’s supposed to be in charge of that. 

Second, the business should conduct a “hazard assessment” to identify jobs and other workplace practices that might be at high risk for contagion. OSHA has separate, more detailed guidance about covid hazards, including a four-level hierarchy to help you understand which jobs and practices pose the highest risks. 

Also notable that the guidance emphasizes, “This assessment will be most effective if it involves workers (and their representatives).” So you may want to survey your employees or give your unions a call. 

Third, implement procedures to limit the spread of covid in the workplace. That includes policies to send sick employees home immediately and to encourage remote work; as well as physical barriers between workstations and equipment to allow for more rigorous and regular cleaning. (Along similar lines, last year we had a post detailing what should go into your Infectious Disease Outbreak Response Program. IDORPs go hand in glove with covid suppression programs.) 

Fourth, consider ways to give more support to employees with higher risk for severe cases of covid. That could include moving high-risk employees to areas with better ventilation or fewer coworkers, or giving them more discretion to work from home. (Although, remember that you cannot force high-risk employees to work from home when others can come into the offices; that will land you a disability discrimination claim.) 

Fifth, provide education and training about your covid policies to employees, in languages they can understand. No need to expound on that one. 

And a Word on Anti-Retaliation

Compliance officers should already know the drill here. Federal law forbids retaliating against an employee who raises concerns about the health and safety of the workplace, which means businesses must implement policies and procedures to prevent such retaliation. 

Technically, the Occupational Safety & Health Act doesn’t require companies to maintain an anonymous reporting hotline. Section 11(c) of the law only forbids retaliation and allows employees to bring complaints to OSHA. Still, the agency strongly recommends that companies establish anonymous hotlines — both as a general rule, and in this latest guidance related to covid. Plus, any compliance officer reading this post probably works at an organization large enough to have an internal hotline already.

In that case, the issue here is more about reminding employees that they can use the internal reporting system to raise covid concerns; and then be sure that your internal reporting system can field those complaints. That might be a matter of setting up new fields in online forms or training call center reps to ask different questions. Regardless — your hotline should be able to handle multiple issues. Covid is only the latest one. 

Just last week I shared thoughts about what Corporate America’s supposed “return to work” might actually look like this year. We can all be thankful that vaccinations are here, but we still have a long slog ahead. And now the Biden Administration has laid down its first marker that it will be watching how well we perform during that slog.

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