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Employers Face Compliance Questions Over CDC Mask Guidance (3)

May 14, 2021, 4:54 PM; Updated: May 14, 2021, 8:09 PM

Employers are caught between outdated workplace safety guidance and new CDC recommendations that vaccinated workers can drop masks in most situations, leaving workplaces to navigate the conflicting federal guidelines.

The guidance the Centers for Disease Control and Prevention issued Thursday wasn’t rolled out along with new advice from the Occupational Safety and Health Administration, which hasn’t substantially changed its masking recommendations in almost four months. The CDC, in effect, left it up to employers to differentiate between vaccinated and unvaccinated workers without running afoul of federal employment laws, attorneys told Bloomberg Law.

The CDC guidance said fully vaccinated people can ditch their masks and forego social distancing in most activities, “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

For employers, the immediate problem is that OSHA, the main federal agency enforcing workplace safety rules, continues to call for all workers to wear masks and socially distance from one another.

OSHA’s most recent recommendations were issued Jan. 29, well before vaccinations were widespread and all adults were eligible to receive them.

“January 29 was eons ago in pandemic terms,” Eric Hobbs, a partner with management-side firm Ogletree Deakins in Milwaukee, said.

OSHA hadn’t said as of late-afternoon Friday whether it would update its guidance in light of the CDC’s shift. An agency spokesperson responded to an inquiry from Bloomberg Law but didn’t comment.

Respirator Question

The safety agency’s guidance continues to advise employers that “it is especially important” for workers to wear a face covering when they are unable to stay at least six feet apart from others, and that “wearing a face covering does not eliminate the need for physical distancing or other control measures (e.g., handwashing).”

The CDC guidance didn’t address the use of respirators, which are generally used in health-care settings and worn over the mouth and nose. Their specifications are federally regulated, and they must be tight-fitting and able to filter out at least 95% of airborne particles.

The administration’s occupational safety guidance could change if OSHA issues a Covid-19 emergency temporary standard. There is no federal regulation that requires employers to take steps to safeguard workers against airborne spread of pathogens.

The agency’s Covid-19 rulemaking is under review at the White House’s Office of Information and Regulatory Affairs, where a series of stakeholder meetings have been scheduled, and it’s unlikely an emergency rule would be released until late May, if at all.

In the meantime, if employers follow the latest CDC studies and guidance, they can justify their policies as safe and effective, Brent Clark, a partner with Seyfarth Shaw LLP in Chicago, said.

“It doesn’t make much sense to wait for OSHA to catch up,” Clark added. “I have no idea what they are waiting for.”

OSHA Citations?

It is unlikely OSHA would cite an employer that follows the CDC guidance, Hobbs said.

“I don’t know how the agency could establish that unmasked vaccinated employees in the workplace pose a hazard either to others or to themselves,” Hobbs said.

But, the CDC’s guidance is advice and doesn’t carry the force of law. And, while OSHA doesn’t have a rule requiring the wearing of face masks to prevent Covid-19 infections, the agency depends on the general duty clause of the Occupational Safety and Health Act, which requires employers to provide workplaces free of known, fatal hazards that can be mitigated.

Still, Hobbs said, given the CDC guidance, OSHA “would be hard-pressed” to issue a “citation under the general duty clause, for treating vaccinated and unvaccinated employees differently,” and get it to “stick.”

President Joe Biden, flanked by Vice President Kamala Harris, speaks about the new guidance on May 13.
Photographer: Tasos Katopodis/UPI/Bloomberg

The unmasking of vaccinated workers in most settings raises new issues for employers in terms of compliance with anti-discrimination laws, Travis Vance, a partner with Fisher Phillips in Charlotte, N.C., said.

Federal health and workplace anti-discrimination regulations limit how much employers and supervisors can know about a worker’s medical condition, Vance said.

“How do you get everyone to be honest about their vaccination status?” Vance said.

The new CDC guidance means that employers will likely drop requirements for all workers to wear masks, and instead only expect unvaccinated workers to use face coverings, he said.

That could create two different sets of workers, Vance said. Employers will need to be sure that they don’t discriminate between masked and unmasked workers and that they limit access to information about employees’ vaccination status.

Allowing vaccinated employees to not wear masks at work raises other issues covered by the Americans with Disabilities Act and U.S. Equal Employment Opportunity Commission rules.

Employers need to consider whether to require proof of vaccination and how to accommodate employees due to a disability or religious reason, Hobbs said.

Unionized Workplaces

Employers with unionized workplaces may have to negotiate policy changes with worker representatives, attorney Katharine Weber, a principal with Jackson Lewis in Cincinnati, said.

Even if an employer concludes its Covid-19 policy isn’t covered by a collective bargaining agreement, it’s a good idea to discuss changes with the union, Weber added.

For any workplace, Weber said, an employer should allow workers to wear masks and socially distance if they want to.

The United Food and Commercial Workers, a union representing grocery store and meatpacking workers, is questioning the CDC guidance.

“While we all share the desire to return to a mask-free normal,” union President Marc Perrone said in a statement, the CDC’s guidance “is confusing and fails to consider how it will impact essential workers who face frequent exposure to individuals who are not vaccinated and refuse to wear masks.”

(Updated with additional reporting.)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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