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OSHA issues updated guidance on workplace COVID-19 prevention programs

By Lauren Symcox Voth

The Occupational Safety and Health Administration (“OSHA”) published updated COVID-19 guidance for businesses on Friday, Jan. 29, 2021. The guidance, Protecting Workers:  Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, (“Guidance”) outlines obligations for employers to comply with OSHA’s General Duty Clause during the pandemic and draws on previously published OSHA and Centers for Disease Control guidance.[1]  OSHA emphasizes the need for employers’ to plan and prepare to protect employees in the workplace from COVID-19.  The Guidance states that it does not create any new legal requirements for employers, but instead provides more detail on “existing mandatory safety and health standards.”  OSHA implies the Guidance may be used for purposes of enforcing employer compliance with COVID-19 prevention programs.

Stock image of industrial worker wearing a mask

(Adobe Stock)

OSHA recommends employers include employees in the development of company prevention programs.  OSHA takes a stronger stance on masking requirements for employees and anyone entering the workplace, physical distancing of employees and non-employees, installing barriers to protect employees, and improved ventilation to prevent the spread of COVID-19 in buildings.

OSHA considers the following to be essential to an effective COVID-19 prevention program.  Many of these elements have been in place for employers for several months.  Companies can benefit from documenting these elements to ensure a cohesive and complete COVID-19 prevention program.  A comprehensive COVID-19 Prevention Program should address the following elements:

  1. Assignment of a workplace coordinator, centralizing responsibility and communication from the company to employees regarding COVID-19 issues.
  2. A Company assessment of hazards in order to identify where and how workers might be exposed in the workplace.
  3. Identify the combination of measures that will limit the spread of COVID-19 in the workplace, which includes prioritizing what controls are most effective and least effective. For example, sending home people with a known exposure, physical distancing, improving ventilation, and cleaning routines.  The Guidance states face coverings should include “at least two layers of tightly woven fabric” and “Employers should provide face coverings to workers at no cost”.
  4. Consider protections for workers at higher risk for severe illness through supportive policies and practices. This element may overlap with an employer’s federal obligations under the Americans with Disabilities Act, Family Medical Leave Act, or state statutory obligations for accommodating disabled employees to protect them from the risk of contracting COVID-19.
  5. Establish a system for communicating effectively with workers in a language they understand. This includes communicating to employees about COVID-19 hazards and a method for employers to receive communications from employees, without fear of reprisal or discrimination.  The communication plan should allow employees to report illness, exposures, hazards, and closures related to COVID-19.
  6. Educate and train workers on company COVID-19 policies and procedures using accessible formats and in a language employees understand. This includes education on COVID-19, prevention policies, and making sure employees understand their rights to a safe and healthful work environment.
  7. Instruct workers who are infected or have potential exposure to stay home, isolate or quarantine to prevent or reduce the risk of spreading COVID-19. OSHA states that absences to prevent or reduce the spread of COVID-19 should be non-punitive.
  8. Minimize the negative impact of quarantine and isolation on workers. OSHA believes this can be achieved by employers permitting remote work or allowing employees to work in areas isolated from others.  OSHA also encourages implementation, or allowing the use of, paid sick leave policies for time off work.  In some states employees may be entitled to COVID-19 related leave.  Although the paid leave requirements in the Families First Coronavirus Response Act expired on December 31, 2020, employers may continue these leave policies and can find more information here [insert link to PM article].  Employers should continue to watch for further changes in federal and state paid leave requirements in 2021.
  9. Isolate, send home and encourage medical attention for employees who show symptoms.
  10. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. This may include closing areas, opening doors or windows, waiting to clean, and using disinfectants appropriate to clean COVID-19.
  11. Provide state and local guidance on screening and testing.
  12. Record and report COVID-19 infections and deaths on the company’s Form 300 logs according to OSHA standards. Outbreaks should also be reported to the local health department for contact tracing.  Employers are also prohibited from retaliating or discriminating against employees who speak out about unsafe working conditions or report infection or exposure to COVID-19 in the workplace.
  13. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  14. Make a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
  15. Employers should not distinguish between workers who are vaccinated and those who are not. This means that vaccinated employees must still comply with all COVID-19 protective policies including but not limited to physical distancing, masking, and other steps necessary to limit transmission.
  16. Apply all other applicable OSHA standards and requirements (i.e. respiratory protection, sanitation, etc.) to ensure that the company provides a safe and healthful work environment free from recognized hazards that can cause serious physical harm or death.

The Guidance provides additional detail for implementing these essential elements to a COVID-19 prevention program, including procedures for isolating infected or potentially infected employees, physical distancing guidelines, physical barrier guidelines, face coverings, cleaning and ventilation improvements.

This OSHA Guidance is likely the first of many updates to COVID-19 prevention procedures for employers in 2021.  Employers should review the full Guidance for more information on COVID-19 prevention programs and keep watch for more information from OSHA, the U.S. Department of Labor, and the Equal Employment Opportunity Commission regarding employer obligations.

[1] The General Duty Clause requires employers to provide employees with a work environment “free from recognized hazards that are causing or likely to cause death or serious physical harm.”  OSH Act of 1970, §5(a).


Attorney Lauren Symcox Voth

For more information on this alert and its impact on your business, please call 405.606.4740 or email me.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic. Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Premise liability and Intellectual property: a sampling of holiday legal woes

As we find ourselves in the midst of another holiday season, it’s a good time to contemplate the joys this time of year brings. For many, that list includes extra time with loved ones, hearty food, and cozy pajamas.

Phillips Murrah litigation attorney Hillary Clifton discusses holiday legal hazards.

Hilary Hudson Clifton is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters. Click the photo to visit her attorney profile.

Hopefully, holiday-specific “legal woes” are less likely to come to mind. Nevertheless, holidays often have their own unique histories of legal issues that few would equate with the brotherly love and fa-la-la-falderal we expect during this “most wonderful time of the year.”

By this time, those who opened their homes and businesses on Halloween hopefully avoided any incidents associated with the spookier part of the season, like haunted house trip-and-falls or home-made cotton-ball sheep costume fires (see Ferlito v. Johnson & Johnson Products, Inc.).

Premises liability, however, remains a major concern for retailers preparing for the onslaught of holiday shoppers. Though most Black Friday retail giants are now well-acquainted with the safety risks associated with enormous sales and even bigger crowds, smaller retailers should be sure to beef up their safety protocol and brush up on premises liability concepts to keep the shopping season incident-free.

In addition to civil liability, failure to adequately cope with Black Friday madness can result in a business being cited by the Occupational Safety and Health Administration, whose “Crowd Management Safety Guidelines for Retailers” can be found online.

Less tangible injuries to intellectual property rights will often arise in connection with holiday-themed entertainment. One case that has been in the news recently involves the Netflix series The Chilling Adventures of Sabrina (which puts a darker twist on Sabrina the Teenage Witch), and The Satanic Temple’s claim that a statue featured in the show of the goat-headed Baphomet infringes on the Temple’s copyright of its own monument.

There’s also a fair chance that your favorite Christmas carol continues to generate income as someone’s intellectual property – and that someone would like to keep it that way (think the listless bachelor played by Hugh Grant in About A Boy). Of course, many holiday favorites, like Deck the Halls and Silent Night, have become part of the public domain and are perfect for spreading Christmas cheer. Others, like Frosty the Snowman, are still protected by copyright and require a license for public performances.

Finally, if you have any particularly overzealous family members, you might turn the threat of intellectual property litigation to your advantage, by cautioning that their makeshift mistletoe hats infringe on the “mistletoe supporting headband” patented in 1983 or the “Kiss Me” holiday cap patented in 1999.

Though I wouldn’t recommend Grinch-ing up your holiday parties by casually chatting about all the ways one might get sued before the new year, we should all keep in mind that no season is immune from the unfortunate reality of accidents, disagreements and liabilities – no matter how sincere our sentiments of peace on earth and goodwill toward man.


Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on November 21, 2018.

OSHA revises online whistleblower complaint form

Published on August 15, 2017

The Occupational Safety and Health Administration (OSHA) announced revisions its online whistleblower complaint form in July in order to help users file a complaint with the appropriate agency.

The updated form provides workers with another option for submitting retaliation complaints to the U.S. Department of Labor’s OSHA.

In the news release, OSHA announced:

The updated form guides individuals as they file a complaint through the process, providing essential questions at the beginning so they can better understand and exercise their rights under relevant laws. One significant improvement to the system includes pop-up boxes with information about various agencies for individuals who indicate that they have engaged in protected activity that may be addressed by an agency other than OSHA. The new form is available in English and Spanish.

“Workers who report unsafe conditions and wrongdoing have a range of legal protections from retaliation,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “The revised online complaint form works to ensure whistleblowers file their complaints with the appropriate federal agency for prompt action.”

In addition to the online form, workers can file complaints by fax, mail, or hand-delivery. Complaints may also be filed by contacting the agency at (800) 321-6742 or by calling an OSHA regional or area office.

Read more about whistleblower rights here, and learn more about OSHA’s role in ensuring safe and healthful workplaces at www.osha.gov.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Oklahoma Department of Labor offers free, confidential safety consultations

Are you concerned about your company’s OSHA compliance? Do you have concerns for the safety of your employees?

Safety consultants can be expensive, and during a time of tight financial resources, safety can take a back seat to other company priorities. However, in Oklahoma we have a cost-free option – the ODOL Safety Consultation program offered by the Oklahoma Department of Labor.

The goal of these inspections is compliance, not to levy fines. The ODOL will assess safety, evaluate the work site, and assist with training and compliance with the OSHA. Most importantly, if a concern is identified by the ODOL safety inspector, he or she will provide your company with suggestions about how to how to improve safety and obtain compliance with OSHA.

The company must agree to correct all hazards identified as serious within the established time frame. The consultations are not reported to OSHA. However, if an OSHA inspection should occur, there are requirements about company reporting regarding certain types of testing performed by the ODOL safety inspector.

Every company that is concerned with employee safety should consider these free, confidential, safety inspections. Identifying and correcting a problem can prevent workplace injuries and accidents, and can save the company penalties and fines in the future.

Learn more about these safety consultations by viewing the Oklahoma Department of Labor’s informational video: Workplace Safety Pays in Oklahoma

Disclaimer: Consultations are not a replacement for legal advice. If you have questions or need legal assistance for safety issues, please contact the law firm of Phillips Murrah at (405) 235-4100.