OSHA is Poised to Mandate COVID-19 Prevention Programs 

March, 2021 - Bob Boston, Trip Conrad

Yesterday, the Department of Labor informally notified key stakeholders that it will soon be issuing new regulations concerning COVID-19.  One expectation is that the regulations will require employers to not only implement COVID-19 prevention programs but also follow CDC guidelines.  Though OSHA has not yet confirmed publicly, a spokesperson for the agency recently revealed: “The Occupational Safety and Health Administration has been working diligently, as appropriate, to consider what standards may be necessary, and is taking the time to get this right.”  Employers should expect OSHA to follow through with more.

New regulations covering COVID-19 is the most recent development in a series of events that began in January when President Biden issued an Executive Order on Protecting Worker Health and Safety to:

  1. issue new guidance on protecting workers during the Pandemic;
  2. launch a national program to ensure that employees in high-risk industries are protected from contracting COVID-19;
  3. review and refocus various enforcement efforts by the Occupational Safety and Health Administration (OSHA); and
  4. determine whether emergency standards concerning COVID-19 should be implemented by March 15. 

The Secretary of Labor has followed nearly all of the directives since President Biden issued the Executive Order on his first full day in office.

The Department of Labor issued new guidance on January 29, 2021 on how employers and employees should (not must) mitigate and prevent the spread of COVID-19 in the workplace.  The recommendations range from routine tasks like providing certain workers with surgical masks or face coverings to making a COVID-19 vaccine or vaccination series available to eligible employers.  That guidance and our analysis of it can be found here

On March 12, OSHA launched a National Emphasis Program focusing its COVID-19 mitigation efforts on employees in high-risk industries.  The stated goal of the Program is to “significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees have a high frequency of close contact exposures,” such as hospitals, assisted living centers, nursing homes, construction sites, and various manufacturing facilities.  To achieve this goal, OSHA intends to increase the number of randomly selected on-site and targeted inspections resulting from complaints, serious illnesses, and fatalities.  OSHA plans to issue more citations under its current standards, including its catch-all General Duty Clause which requires employers to ensure the safety of their employees.  These citations will be based on whether an employer is following the current CDC recommendations and guidelines as well as any subsequent OSHA guidance.  The Program also aims to continue OSHA’s efforts toward protecting employees from employer retaliation for COVID-19-related complaints.

While OSHA’s guidance currently remains just that, soon that same guidance will likely be backed by the force of law and failure to follow it will result in citations and penalties.  Employers should review their COVID-19 protocols over these next few weeks and start implementing at least some of OSHA’s tips to begin positioning themselves for when the regulations are issued.  Forewarned is forearmed.



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