The U.S. Occupational Safety and Health Administration (OSHA) has issued updated guidance for employers to account for the Centers for Disease Control and Prevention (CDC) recently updated guidance.
The CDC had instructed even the fully-vaccinated to wear masks in public indoor areas, but many employers were left wondering which of their workplaces would apply.
OSHA has now issued guidance to help employers decide how to comply, though it is important to keep in mind that guidance from OSHA is only a recommendation, not a rule. Unfortunately, this guidance is far from clearing up the issue and, in some ways, may lead to more confusion altogether.
The most important provisions that provide some guidance on OSHA’s position on the matter are contained in the appendix and the executive summary. In the executive summary, OSHA states that in areas of substantial or high transmission, fully vaccinated individuals should be required to wear face coverings when inside. Unfortunately, the body of the text does not contain any further guidance than the summary and does not contain any recommendations on whether employers should mandate face coverings for employees or not.
However, the appendix does expand on the matter quite a bit more. Here it adds that employers should take steps to reduce the spread of the coronavirus among unvaccinated and at-risk employees, particularly in areas with substantial or high transmission as provided in the CDC guidelines. The appendix proceeds to list workplaces that pose a heightened risk of transmission as well from certain workplace environmental factors such as those in meat processing, high volume retail, grocery, and food processing industries.
The guidelines in the appendix state that these workplaces should adopt further precautions that provide greater protection than regular precautions. One of these further precautions is to require fully vaccinated workers to wear a face covering and to consider requiring the same for all customers and visitors as well. It also provides that fully vaccinated workplaces should do the same in substantial or high transmission areas when unvaccinated and otherwise at-risk employees are present in the workplace as well.
This is a clearer position than the executive summary and CDC guidelines and far more narrow as well. It would appear from the appendix that OSHA would not feel that employers need to require masks in outdoor, non-substantial, or high transmission areas or workplaces without unvaccinated or at-risk employees.
Unfortunately, this guidance does not provide any guidance on vaccinated employee masking in indoor public workplaces that are not at a heightened risk. Further, the guidance provides no indication on how to determine if any workers are at a heightened risk without running into conflict with the Americans with Disabilities Act.
Though employers in the heightened risk industries listed in the appendix may want to consider implementing masking policies to avoid running afoul of OSHA’s General Duty Clause, it is important to remember that this is just a recommendation. These guidelines are not enforceable in of themselves, so employers should be safe as long as they are otherwise following OSHA’s guidelines to protect employees from the risk of transmission.