Employers Covered by OSHA May Still Be Required to Mask Up

On May 13th, the Centers for Disease Control and Prevention (CDC) updated its guidance for fully vaccinated people. According to the CDC, “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” Some states and localities have updated their orders to no longer require masks.

OSHA has added the message below to its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, indicating it is in the process of updating its guidance:

“The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. 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.”

So what are employers to do regarding masks in the workplace with inconsistent or incomplete guidance and orders? First, continue to follow any orders and guidance that does mandate masks.  That includes state or local guidance, healthcare and other industry-specific guidance, and OSHA guidance on requiring masks in the workplace for those who are not fully vaccinated. Second, allow all employees who want to wear masks to continue to wear them. Even fully vaccinated employees may have good reason to continue masking – such as being immunocompromised. And some states have state laws prohibiting taking adverse action against employees for wearing masks. Third, if you choose to follow CDC guidance and allow vaccinated people to unmask and not physically distance in the workplace, be sure to have clear written procedures and precautions in place to ensure safety for all. For example, how will you distinguish between vaccinated and unvaccinated people?  How will you continue to enforce OSHA requirements for unvaccinated workers to ensure their safety?  OSHA may have enforcement discretion if employers are following CDC guidance for vaccinated people, but employers must be thoughtful and diligent about complying with existing OSHA guidance. Ultimately, OSHA has the authority to cite and fine employers if they fail to do so.