By Rob Gilmore & Lyndsay Ross
On Jan. 21, 2021, President Biden signed the Executive Order on Protecting Worker Health and Safety. The Executive Order proclaims the Administration’s policy that “[e]nsuring the health and safety of workers is a national priority and a moral imperative.” In furtherance of this goal, the Executive Order mandates that the Department of Labor take certain steps to protect workers during the COVID-19 pandemic.
The Executive Order has two main subsections: one is geared toward protecting workers covered by the Occupational Safety and Health Act (the “Act”), which includes most private sector employees, and the second is geared toward workers who fall outside the scope of the Act, such as self-employed individuals.
For workers who are protected by the Act, the Executive Order directs the Secretary of Labor to:
- Issue revised guidance to employers regarding workplace safety during COVID-19 by Feb. 4, 2021;
- Consider if emergency temporary protections, including those related to masks in the workplace, are needed. If so, those requirements must be issued by March 21, 2021;
- Review the Occupational Safety and Health Administration’s (“OSHA”) enforcement of COVID-19 requirements to date, and determine if changes are needed;
- Launch a program to focus enforcement of COVID-19 requirements toward the violations that pose greatest risk; and
- Coordinate with other agencies to launch a campaign to inform workers of their rights.
In response to the first requirement, OSHA posted new guidance on January 29, 2021. This Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace expressly states that while it is intended to assist employers in providing a safe workplace, it creates no new legal obligations. Much of the Guidance reiterates basic COVID-19 protections, including the need for face coverings, social distancing, and disinfecting the workplace. The added element is encouraging employers to implement a COVID-19 Prevention Program that engages workers. OSHA recommends that this Program include, among other things, appointing a workplace coordinator responsible for COVID-19 issues, ensuring that all COVID-19 information is communicated to workers in a language and manner they can understand, and implementing a process by which workers can voice COVID-19 concerns anonymously or in any other manner where they would be protected from retaliation.
Separately, or workers who are not covered by the Act, the Executive Order requires that the Secretary of Labor:
- Ensure that states with state-specific occupational safety and health plans are adequately protecting workers;
- Consult with local governments to increase COVID-19 protections in those states that do not have state-specific occupational safety and health plans;
- Consider additional mechanisms to protect workers who are outside the Act; and
- Specific to mine safety, consider whether emergency temporary protections are needed and, if so, issue them as soon as practicable.
This Executive Order is one of several that President Biden has signed related to COVID-19 workplace protections. Prior to this Executive Order, he signed a separate executive order related specifically to federal workplace safety. Further, a statement from the White House on Jan. 22, 2021 requests that the Department of Labor consider clarifying existing guidance, such that workers would have a federally guaranteed right to qualify for unemployment benefits after refusing employment that would jeopardize their health.
KJK will continue to monitor these developments and any forthcoming guidance. For more information on the Executive Order Protecting Worker Health and Safety, contact Rob Gilmore (firstname.lastname@example.org / 216.736.7240) Lyndsay Ross (email@example.com / 216.736.7201) or any of our Labor & Employment attorneys.