The Occupational Safety and Health Administration (OSHA) has attempted to clarify some of the confusion surrounding new facemask mandates by announcing that healthcare employers can continue to grant exemptions to their workers under the agency’s Emergency Temporary Standards (ETS).
The Centers for Disease Control and Prevention (CDC) issued a guidance on July 30, revising its previous guidances because of the rapid spread of the delta variant of the COVID-19 virus. The CDC advice is that everyone wear a mask in indoor public settings in parts of the country that are considered areas of substantial and high transmission, regardless of individuals’ vaccination status.
Earlier this year OSHA issued its ETS, which was originally intended to apply to most employers. However, by the time the agency got around to developing the standards, widespread vaccinations had seemed to have gotten the pandemic under control, and as a result, with no emergency evident, the ETS that was issued exclusively targeted workers in the healthcare industry.
OSHA recently announced on its website that it has reviewed the latest guidance, science and data on COVID-19, and is not otherwise amending its COVID-19 ETS for healthcare at this time. When it comes to employers in other industries, they should keep in mind that OSHA’s Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace explicitly references the CDC guidance in its recommendations.
Attorneys for the Seyfarth Shaw law firm point out that OSHA’s ETS for healthcare employers provides a clear exception to general mask rules for vaccinated employees who work in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID–19 will be present. “Accordingly, compliant with the ETS, healthcare employers are lawfully permitting employees to unmask in office settings where all employees are vaccinated and no COVID+ patients will be present,” they say. However, they add, “a healthcare employer who complies with the ETS and allows vaccinated employees to unmask, in a county with substantial or high COVID-19 transmission, would run afoul of the CDC’s updated guidance.”
Not surprisingly, healthcare employers were unclear whether continued adherence to the ETS, and its facemask exceptions, would be permissible given the new CDC Guidance and OSHA’s General Duty Clause, which requires employers to keep a workplace free from any recognized hazard, the attorneys observe.
In terms of the impact the new CDC guidance has on ETS compliance, OSHA has published the following disclaimer on its website:
“OSHA has reviewed the latest guidance, science and data on COVID-19 and has consulted with the CDC (through the National Institute for Occupational Safety and Health). The Department of Labor has determined that neither CDC’s guidance on healthcare settings nor the underlying science and data on COVID-19 in healthcare settings has materially changed in a way to necessitate changes in the health and safety requirements contained in the ETS released on June 10, 2021.
“OSHA has determined that no changes to the ETS are necessary at this time, but the agency will continue to monitor and assess the need for changes each month.”
Accordingly, OSHA has made it clear that permitting mask exceptions for vaccinated employees will still be permissible for employers, despite the new CDC guidance, the Seyfarth Shaw attorneys explain.
“It seems that OSHA understands that the data from the pandemic is constantly in flux and will take its time in revisiting the ETS or any requirements for employers, rather than react in a knee-jerk fashion,” they add. “For employers this is an encouraging sign and indicates that OSHA’s enforcement priorities are not subject to sudden reversals as may have been the case with the CDC’s guidance.”