As part of President Biden’s first executive actions, on January 21, 2021, the president ordered the federal Occupational Safety and Health Administration (“OSHA”) to issue new science-based guidance to protect workers and enhance workplace health and safety during the Covid-19 pandemic. In compliance with this executive order, on January 29, 2021, OSHA issued new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks. The guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” (“Guidance”) contains advisory recommendations and reinforces already existing mandatory safety and health standards. This Alert provides an overview of this new federal Guidance and highlights important considerations for employers.

Legal Obligations of Employers in Responding to COVID-19

Throughout the Covid-19 pandemic, OSHA has referenced and leveraged the Occupational Safety and Health Act

The federal Occupational Safety and Health Act and its implementing regulations require employers to record certain work-related injuries and illnesses. Due to the prevalence of community transmission of COVID-19, deciding whether an employee’s COVID-19 illness is work-related, and therefore recordable, is more challenging than ever for employers. In addition to the federal Occupational Safety and Health Administration’s (OSHA) existing recordkeeping requirements found at 29 Part 1904, OSHA released an interim enforcement policy on April 10, 2020 (Enforcement Guidance for Recording Cases of COVID-19) (April 10 OSHA Guidance) clarifying that OSHA will exercise its enforcement discretion to interpret the recordkeeping requirements to mean that most employers (other than those in the healthcare, emergency response, and correctional institution industries) are only required to make a decision about whether an employee’s COVID-19 illness is work-related if there is objective evidence of such work-relatedness that is reasonably available to the employer. The following questions and answers aim