8.13.21

The Occupational Safety and Health Administration announced today that it is “recommending” that “fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protected unvaccinated workers.” The latest guidance further “recommends” that “fully vaccinated workers who have close contacts with people with coronavirus wear masks for up to 14 days unless they have a negative coronavirus test at least 2-5 days after such contact.”

The August 13 “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” explains that these “recommendations” are “advisory in nature and informational in content” and are “intended to help employers and workers who are located in areas of substantial or high community transmission who should take appropriate steps to prevent exposure and infection regardless of vaccination status.”  OSHA’s August 13 guidance explicitly adopts the recent recommendation of the Centers for Disease Control and Prevention that even vaccinated people wear masks in public indoor settings.

So is OSHA just “recommending” that employers consider having their vaccinated employees wear masks, or will OSHA enforce mask-wearing under the General Duty Clause? Is OSHA playing it both ways?

In the absence of an Emergency Temporary Standard that applies to employers other than those involved in health care services, OSHA uses the General Duty Clause of the Occupational Safety and Health Act to require employers to protect their employees from the risk of exposure to the SARS-CoV-2 virus. Under the General Duty Clause, once it is established that there is a recognized hazard likely to cause death or serious physical harm, an employer must implement feasible control measures to eliminate or “materially reduce” the hazardous condition.

OSHA’s guidance includes a variety of steps that employers can take to address COVID-19, but masks and physical distancing, along with hygiene, screening, and ventilation, have been the Agency’s primary recommendations.  It seems unlikely that the Agency would not consider wearing masks as a feasible control measure needed to “materially reduce” the risk of exposure, given the present CDC guidance. So, although OSHA’s new guidance suggests that these are only “recommendations” and “advisory in nature,” as a practical matter we would expect OSHA to consider masks as “required” in areas of “substantial or high community transmission.” While not every community fits that description, having to adjust your policy based on the ever-changing transmission rate map may be more trouble than it is worth.

So, masks are back again, until they’re not, again.

Left unaddressed in OSHA’s latest announcement is how employers would distinguish vaccinated from unvaccinated workers if an employer did not require all of its employees to wear masks. The Equal Employment Opportunity Commission says that employers may ask employees whether they have been vaccinated, and even for proof of vaccination. However, many employees will object to the question, incorrectly asserting their constitutional rights or that the Health Insurance Portability and Accountability Act prevents such inquiries. But even if your employees revealed their vaccination status, how would you be able to identify which employees are in each group? Would the vaccinated wear some distinctive marking on their work clothes or on a hard hat? Such an approach, at a minimum, seems fraught with employee relations problems.

Ultimately, it seems that an employer’s best approach during the resurgence in COVID cases is to do everything it can to encourage the unvaccinated to get vaccinated and to require everyone to wear masks, both to stay out of trouble with OSHA and as an incentive to encourage vaccinations.

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