The COVID-19 guidance issued by the Centers for Disease Control and Prevention (CDC) holding that fully vaccinated individuals no longer need to wear masks or socially distance in most settings has created confusion among the public, employers, and federal and state regulators.
Employers are still subject to state and local level restrictions, many of which are being lifted as the days go by. Many businesses that deal with the public, like restaurants and some retail stores, have chosen to continue their mask requirements for both customers and employees. Also, a surprisingly large numbers of people have elected to continue wearing masks.
There has been speculation about the reasons for the lingering mask usage by many Americans following the CDC guidance, ranging from an attitude of “better to be safe than sorry” to fears that linger after a year of disease and death running through the population. Another possible reason: The government has contradicted itself so often since the pandemic began that many people simply don’t believe its latest pronouncement.
Regardless of the reason for public resistance to the change, the CDC’s withdrawal of the mask mandate created confusion at federal and California Occupational Safety and Health Administrations regarding the promulgation and prolongation of COVID-19 Emergency Temporary Standards (ETS) for workplaces.
On his first full day in office, President Biden issued an executive order demanding that OSHA create an ETS no later than mid-March. However, the agency missed that deadline because of complications that arose from the success of widespread vaccinations. The ETS were sent to the White House for review and were expected to be issued sometime in June.
Since issuance of the new CDC mask guidance, questions have arisen once again about whether the OSHA ETS are needed. (This is not just an academic exercise. Courts in the past have struck down ETS after holding that the purported emergency did not exist).
“OSHA has not indicated in any way to date that it no longer intends to issue a COVID-19 ETS,” says attorney James Sullivan of the law firm of Cozen O'Connor. “On the contrary, OSHA’s possibility of an ETS being issued is still very real even though their attorneys within the Solicitor of Labor’s office must recognize that an ETS has a feeble chance of surviving the judicial challenge.”
On May 18, the agency put up a banner on its website reporting: “OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”
This means that employers are still required to adhere to the 12-page COVID guidance that OSHA issued on Jan. 29. But OSHA has not made entirely clear how employers should apply the CDC guidance in workplaces, note attorneys Cressinda D. Schlag and Courtney M. Malveaux of the Jackson Lewis law firm.
“The banner also appears to conflict with OSHA’s prior directions to employers to treat vaccinated and unvaccinated employees equally for purposes of evaluating and responding to potential COVID-19 hazards. OSHA is also unclear as to what guidance it will use for enforcement purposes,” they observe.
The ETS would need to pass requirements set by the Occupational Safety and Health Act, according to Charles Palmer, a partner with the law firm of Michael Best & Friedrich. The law requires OSHA to give “due regards” to recommendations from the CDC’s parent agency, the Department of Health and Human Services, and must be based on the “best available evidence.”
Right now, the recommendations and evidence show fully vaccinated workers aren’t a risk, Palmer points out. The White House’s regulatory office has held “listening sessions” with stakeholders but has remained tight-lipped about what the proposed regulations contain.
California Plans to Act
The CDC’s surprise guidance also has created problems for the OSHA state plans, particularly those that already had adopted their own ETS regulations, including California.
The Standards Board of Cal/OSHA postponed until June 3 a meeting to vote on revisions to that state’s ETS that had been proposed before the CDC announcement. The target effective date for the proposed changes to the ETS will be June 15.
Keep in mind that the Cal/OSHA board currently plans to issue a revised slate of proposed changes on May 28, and it is not known at this time how closely they will resemble the agency’s previous proposals, developed before the CDC announcement.
The original proposed changes include removal of physical distancing and masking requirements for fully vaccinated employees to align with the latest CDC guidance, and removing physical distancing requirements for employees wearing respirators.
It also is proposed that asymptomatic employees who have fully recovered from COVID-19 in the last 90 days or those who have been fully vaccinated no longer need to be offered testing or excluded from the workplace after a close contact exposure with a COVID-19 case.
In addition, the proposal would reformulate the definition of a COVID-19 “Exposed Group” in such a way that the determination of a COVID-19 exposure would be limited to the “Exposed Group,” defined as “all persons at a work location, working area, or a common area at work, where a COVID-19 case was present at any time during the high-risk exposure period.”
This limitation is especially important because it determines the scope and extent of an employer’s obligations under the ETS, which includes investigation and contact tracing, notification, recordkeeping, reporting, and outbreak counts, attorneys at the Littler Mendelson law firm stress. Also included would be new training requirements, including training on respirators, and mandating that employers pay for employee vaccinations.
Virginia was one of the earliest state adopters of ETS last year and chose to make its regulations permanent on Jan. 27. These new rules require all workers to wear face coverings if they cannot maintain physical distancing. The Virginia standard does not distinguish between vaccinated and unvaccinated workers, Schlag and Malveaux explain. These requirements remain in place, despite Governor Ralph Northam’s Executive Order lifting face covering requirements consistent with CDC guidance.
They further explain that employers in New York must grapple with the recently enacted HERO Act, which amends the state’s labor code and requires employers to implement an infectious disease control plan and preventive measures required by state directives. The HERO Act is also silent on the impact of COVID-19 vaccinations on required workplace preventive measures.
Other states are finding their own adjustments to the changing federal guidelines. For example, Nevada OSHA issued guidance on May 14 holding that employers can have stricter face mask requirements than CDC guidance while directing them to follow CDC guidance and state directives.
However, Nevada OSHA also went on to emphasize that COVID-19 remains a recognized hazard and because of this, employers need to have in place a written COVID prevention and response plan addressing workplace hazards related to the disease and make sure to implement appropriate controls as identified through a hazard assessment.
