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  • Ryan T. Biesenbach

OSHA ISSUES UNCLEAR GUIDANCE TO EMPLOYERS ON MASKING FOR FULLY VACCINATED EMPLOYEES

On August 13, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” access to which can be found on OSHA’s website. Although OSHA’s update is presented in some measure in response to the July 28, 2021 “Interim Public Health Recommendations for Fully Vaccinated People” released by the federal Centers for Disease Control (“CDC”), its guidance does not clarify the CDC’s recommendations, nor does it immediately obligate employers to usher in any additional workplace protocols (at least beyond those we have been living with throughout the pandemic, a preparedness plan for which is now separately required by the NY HERO Act).


By way of background, Underberg & Kessler recently published articles concerning the continuing issues faced by employers as the Delta variant spreads, particularly in light of the above-referenced CDC recommendations (available here), and the legal ability for employers to mandate vaccinations in most circumstances (available here), authored by, respectively, firm partners Paul F. Keneally, Esq. and Colin D Ramsey, Esq. OSHA’s updated guidance is largely based upon the issues discussed in each of these articles: specifically, the revised CDC recommendations and vaccination status of employees as concerns the need to mask. In essence, OSHA’s new guidance reinforces the CDC’s recommendations without explicitly adopting them. Two provisions of the guidance, one in the executive summary and one in the appendix, partially flesh out OSHA’s position on the masking of fully-vaccinated employees.


First, the summary of OSHA’s new guidance provides, very generally, “[f]ully vaccinated people in areas of substantial or high transmission should be required to wear face coverings inside.” That recommendation does not appear plainly, however, in the main body of the guidance that the executive summary supposedly summarizes. The body mentions the CDC’s recommendation in the context of OSHA’s suggestion that employers supply employees with face coverings, but OSHA does not say it is adopting the CDC’s recommendation or include a section in the body of the guidance that explicitly recommends that fully vaccinated employees be required to mask under any circumstances.


Second, the appendix of the guidance, titled “Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers”, offers a narrower masking recommendation than that of the CDC guideline. It provides: “Employers should take additional steps to mitigate the spread of COVID-19 among unvaccinated or otherwise at-risk workers due to the following types of workplace environmental factors, especially in locations of substantial or high transmission [per the CDC’s guideline].” The appendix goes on to list workplaces that pose a “heightened risk [of COVID-19 transmission] due to workplace environmental factors,” including: “manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings.” OSHA suggests that employers with such heightened-risk workplaces should adopt best practices that go beyond the “general precautions” provided by the main body of the guidance. And one of those best practices is to “[r]equire … fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible, [and] encourage and consider requiring customers and other visitors to do the same.”


In sum, where an employer’s workplace: a) is not in one of those listed “heightened risk” industries; or b) is outdoors; or c) includes only vaccinated, not-at-risk employees; or d) is not located in an area of substantial or high community transmission, OSHA’s position appears to be that the employer need not require that fully vaccinated employees in the workplace mask.


Moreover, OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19. Infections in fully vaccinated people (breakthrough infections) happen in only a small proportion of people who have received a full course of vaccinations, even with the Delta variant. When these infections occur among vaccinated people, they tend to be mild, reinforcing that vaccines are an effective and critical tool for bringing the pandemic under control. To that end, OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects – a recommendation which has been legally required in New York since March 12, 2021.


Remember: the guidance by OSHA cannot mandate anything; it is not the law. OSHA’s guidance is not a standard or regulation, and it creates no new legal obligations for employers. As structured, the new guidance is provided for “use in protecting unvaccinated workers and otherwise at-risk workers” and “for fully vaccinated workers in areas of substantial or high transmission.” However, although OSHA’s publication is labeled as “guidance”, employers in certain industries – generally, healthcare and healthcare support settings – need to be cognizant of the mandatory OSHA COVID-19 Emergency Temporary Standard (available here). Pursuant to OSHA, employers in those industries must comply with those standards. As of August 16, 2021, healthcare workers in New York are also required to be fully vaccinated against COVID-19, with a first-dose requirement of September 27, 2021 (a copy of a press release from the Governor’s office can be found here).


If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan Biesenbach, the author of this piece, at (585) 258-2865.

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