The federal Occupational Safety and Health Administration (“OSHA”) recently released Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (“OSHA Guidance”). The OSHA Guidance is similar to the Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (“Virginia Standard”) recently approved by the Virginia Occupational Safety and Health (“VOSH”) Program. This firm previously wrote about the Virginia Standard.
The OSHA Guidance is only guidance, not law; its “recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.” Although the OSHA Guidance is not a new OSHA standard, some aspects are driven by existing OSHA standards. The Virginia Standard, by contrast, is mandatory for all work sites under VOSH’s jurisdiction. In other words, an employer can be cited for violation of the Virginia Standard, but not for violation of the OSHA Guidance. The employer could be cited, however, for violation of an existing OSHA standard on which the OSHA Guidance is based.
As a reminder, whether OSHA or VOSH have jurisdiction depends on the location of the work that is being performed in Virginia. A job site on federal property or premises, or on the waterfront, is governed by the OSHA Guidance. All other Virginia work locations are governed by the VOSH Standard.
Apart from this key difference, the OSHA Guidance echoes the Virginia Standard to such an extent that it appears OSHA was influenced by Virginia’s groundbreaking approach to COVID safety. Both advise that businesses assign an employee or employees to coordinate COVID prevention efforts and implement commonsense prevention methods: physical distancing, face coverings, barriers where physical distancing is not feasible, improved ventilation, use of personal protective equipment when necessary, handwashing and hand sanitizing, good hygiene, and routine cleaning and disinfection. Some key highlights of the similarities and differences between the Virginia Standard and the OSHA Guidance are noted below.
The Virginia Standard’s infection prevention planning has differing requirements based on whether an employee’s work is classified as very high, high, medium, or lower exposure risk. The OSHA Guidance makes no distinction. Both make specific recommendations for workplace airflow management. The Virginia Standard goes a step further by detailing employer vehicle usage requirements.
The Virginia Standard sets forth detailed COVID infection reporting requirements, while the OSHA Guidance relies on its existing illness/injury recording requirements. Neither the Virginia Standard nor the OSHA Guidance requires or recommends that COVID testing be used as a prerequisite for an infected employee’s return to work. Both instead rely on the passage of time: for an asymptomatic employee, ten days since the positive test, and for a symptomatic employee, 24 hours without a fever, ten days since symptom onset, and improvement in respiratory symptoms.
Finally, both the Virginia Standard and OSHA Guidance emphasize the importance of employee training to prevent disease transmission.
