The Biden administration already has begun to implement changes at the Occupational Safety and Health Administration (OSHA). In one of his first Executive Orders, President Biden directed OSHA to revisit the issue of a national standard to control the spread of COVID-19 in the workplace.

A national standard was previously considered by the Trump administration in 2020, but the decision was made not to issue a COVID standard because it was unnecessary. Instead, the Trump administration opted to rely on OSHA's general duty clause for any enforcement or regulations. Unions appealed the decision to the United States Court of Appeals for the District of Columbia, but that Court agreed with the Trump administration that an emergency standard was unnecessary. In the wake of that decision, several states, including California and Virginia, issued their own COVID standards.

While a new COVID standard has yet to be issued, on January 29, 2021, OSHA issued a new COVID guidance document titled, "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace."

This is the first guidance since June 2020 and is for all industries outside of healthcare. The guidance suggests that employers establish a Workplace Coordinator for COVID-19 issues, recommends no-cost vaccinations for employees, and recognizes that even after some employees are vaccinated, masks and other protective measures should still be required of all employees. Also, the new guidance gives updated information on how long employees should quarantine after an exposure, suggests the types of mask to be used, and recommends general cleaning measures to reduce the risk of COVID-19 exposure.

The Guidance also contains extensive information and suggestions on when and where masks should be worn. Employers should review the new guidance and consider implementation where necessary. To the extent OSHA adopts a COVID standard, these measures are likely to be included. We anticipate that a new COVID-19 regulation will be issued this March.