More Guidance on COVID – And More to Follow

By: By Mark Webb
Mark Webb
Mark Webb

On January 21, President Joe Biden signed an Executive Order on Protecting Worker Health and Safety. Among its many directives to newly-appointed Deputy Assistant Secretary of Labor for Occupational Safety and Health (OSHA) James Frederick, are to:

“…issue, within 2 weeks of the date of this order and in conjunction or consultation with the heads of any other appropriate executive departments and agencies (agencies), revised guidance to employers on workplace safety during the COVID-19 pandemic,” and; 

“…consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.”

 On January 29, the Department of Labor (DOL) issued its revised Guidance: “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”. The DOL announcement of the new Guidance states, “Implementing a coronavirus prevention program is the most effective way to reduce the spread of the virus.” This all may sound familiar to California employers.

Deputy Assistant Secretary Frederick will also be tasked with coordinating these responsibilities with States, like California, which have approved occupational safety and health plans, “…to seek to ensure that workers covered by such plans are adequately protected from COVID-19, consistent with any revised guidance or emergency temporary standards issued by OSHA.” While a review of Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standard (ETS) will probably show workers are adequately protected as a matter of policy, it remains to be seen what the DOL will do regarding the critical shortage of inspectors necessary to ensure workers are adequately protected in reality.

After February 1, Cal/OSHA states that it will start assessing monetary penalties against employers for failure to comply with the ETS or operating their businesses in a way that is hazardous to employees. This corresponds to the first full business day the new OSHA Guidance will be in effect. While the Guidance is not a standard or a regulation, it should not be ignored. At a minimum, its provisions regarding a prevention program should be compared to the ETS and material differences identified.

Things could get more complicated if OSHA decides an emergency temporary standard will need to be issued on or before March 15. It would seem likely that there will be such a standard and it will look very much like the ETS the Occupational Safety and Health Standards Board (OSHSB) adopted this past November. For California employers, it may be of little consequence – at least to the degree that the cost of compliance with the current ETS, AB 685 (Reyes) and SB 1159 (Hill) is considered table stakes to do business in California. For operations outside California, the cost of compliance and corresponding confusion could prove significant.

Federal action also does not eliminate the need for the Legislature to reconcile AB 685 with the ETS and, potentially, with whatever OSHA pronounces by March 15. For policymakers in Sacramento and Washington D.C., however, it should be noted that it is easier to comply with regulations when the regulations – and consequently the regulated employers – are not moving targets.

Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.