Under an executive order issued in the first days of the Biden administration, the federal Occupational Safety and Health Administration has been tasked with deciding whether a nationwide workplace COVID-19 infection prevention standard should be adopted. Employers widely expect that temporary regulations will be issued within the next several weeks, requiring them to create written safety plans that include steps recommended by the Centers for Disease Control and Prevention.

If CDC guidelines are incorporated by OSHA into its safety standard, this raises questions over how employers will be expected to comply with frequent changes to such guidance. Understandably, as we learn more about the COVID-19 virus and how it spreads, the CDC has repeatedly changed its recommendations. If an employer adopts infection control procedures based on the guidance in effect at the time the plan is adopted, will OSHA deem that plan to be in compliance if the underlying CDC guidance changes?

Absent a safe harbor provision in the federal OSHA rules, employers may need to frequently monitor CDC guidance and amend their COVID-19 plans based on shifts in recommendations regarding quarantine periods, masks, social distancing, and other disease prevention measures. Individual states that have adopted their own plans have not directly dealt with this issue. Hopefully, any federal standard proposed by OSHA will recognize the difficulty employers will have – especially small employers – in keeping such plans in conformance with changing safety recommendations.