Latest OSHA Update to COVID-19 Guidance

In response to the B.1.617.2 (Delta) variant currently spreading in communities throughout the United States, OSHA has recently published updated COVID guidance for employers, which, not unexpectedly, answers some questions while raising others. The update is intended to bring the agency’s guidance in line with the Centers for Disease Control and Prevention (CDC) recommendations [1]published at the end of July.

Masks are back

Just in case you missed it, the CDC and OSHA are now recommending that fully vaccinated people, as well as unvaccinated people, wear a mask in some public situations. The CDC says that masks should now be worn in all “public indoor settings” where transmission rates are high. OSHA has adopted this policy in its new guidance, making the recommendation in the executive summary that “fully vaccinated people in areas of substantial or high transmission should be required to wear face coverings inside.”

We are assuming at this point that the CDC’s definition of “public indoor settings” applies to shared spaces in office buildings, as well as to any workplace that OSHA identifies as higher risk in the Appendix of the revised guidance: manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing.

OSHA is encouraging employers in charge of higher-risk workplaces to adopt best practices that go beyond general precautions, including “requiring fully vaccinated workers … to wear masks whenever possible and to consider requiring customers and other visitors to do the same.”

Why is this happening?

According to CDC estimates, the Delta variant [2]represented more than 80 percent of new U.S. COVID-19 cases at the end of July 2021. Vaccines for COVID-19 provide significant protection from becoming seriously ill or dying from any of the virus variants to date, including the Delta variant. Nevertheless, there remains a danger that the virus can spread to the unvaccinated and immunocompromised, where the consequences of infection can be much more deadly.

Has the CDC overreacted?

The day before OSHA published its new COVID guidance on August 13, 2021, The Heritage Foundation’s Center for Data Analysis published a paper[3] entitled “A Statistical Analysis of COVID-19 Breakthrough Infections and Deaths.” This analysis questions the CDC’s interpretation of data in numerous ways and advocates for the promotion of vaccines — not mask mandates. The narrative also urges government officials to begin making the distinction between “risk of infection” and “risk of serious illness/death” when analyzing data and asserts that the government is running the risk of increasing vaccine hesitancy by recommending mask mandates.

Vaccinations and testing

In the revised guidance, OSHA continues to highlight vaccination as the best step to protect employees from COVID-19. It also emphasizes ongoing employee engagement to protect unvaccinated and other at-risk individuals. OSHA wants employers “to consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing — in addition to mask-wearing and physical distancing — if they remain unvaccinated.”

What does “regular testing” mean? While the word “regular” isn’t defined in OSHA’s guidance, the federal government is requiring all federal employees — including all military personnel — to get vaccinated or face weekly testing, as well as social distancing, mask-wearing, and limits to official travel.

Each federal agency has the freedom to develop its own testing plan, and the government is covering the weekly testing costs for unvaccinated federal employees. The Biden administration hopes that state governments and private companies will also figure out how to cover testing costs. Currently, some private companies and colleges are already requiring the unvaccinated to pay for testing[4].

What does enforcement mean?

If OSHA plans to enforce any of this guidance, it will have to do so under the Occupational Safety and Health Act’s General Duty Clause[5]. This means that in issuing a citation, the agency must show that a hazard existed in the workplace and that whatever the employer did to protect employees wasn’t correct. It’s hard to imagine a situation where OSHA could prove that on a particular day, a vaccinated person not wearing a mask had transmitted a virus — which subsequently posed a risk to others — but this is where we are.

Employers — particularly those identified as high risk — are encouraged to meet the updated OSHA guidance about wearing masks. Since the earliest days of the pandemic, the agency has been clear about the five things that employers can do to mitigate the spread of COVID-19 in the workplace: wear masks, implement physical distancing, practice hygiene, screening, and ventilation. Masks and physical distancing are the most apparent and feasible control measures that an employer can take to “materially reduce” the risk of exposure.

Even though OSHA’s recommendations are not rules, OSHA will undoubtedly consider masks “required” in areas of “substantial or high community transmission.”

The vaccinated and the unvaccinated

If an employer decides not to implement a general masking policy for everyone, distinguishing between vaccinated and unvaccinated workers remains a problem. Even though it’s legal to ask[6] the question about vaccination status and even ask for proof of vaccination, some employees will object — incorrectly asserting their constitutional rights or saying that the Health Insurance Portability and Accountability Act (HIPAA) forbids such questions.

Even for employers who have collected vaccination information on all employees, significant questions remain about how they distinguish between these groups on a practical level. Do employees wear a badge? It’s hard to see that working very well.

What to do?

The best thing that employers can do during these episodic COVID resurgences is to encourage vaccination and, if the infection rate warrants it, encourage mask-wearing.

In the meantime, hang in there, and let us know if we can help you with any of your OSHA compliance questions or concerns.

About the Author: James Laboe[7]

Endnotes:
  1. recommendations : https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html
  2. the Delta variant : https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html
  3. published a paper: https://www.heritage.org/public-health/report/statistical-analysis-covid-19-breakthrough-infections-and-deaths
  4. requiring the unvaccinated to pay for testing: https://www.nytimes.com/2021/07/31/upshot/unvaccinated-covid-tests.html
  5. General Duty Clause: https://orr-reno.com/general-duty-clause-violations/
  6. legal to ask: https://orr-reno.com/covid-19-vaccination-require-or-recommend/
  7. James Laboe: https://orr-reno.com/our-people/james-f-laboe/

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