COVID-19 Policies in Flux at Federal, State Levels

Federal and state workplace safety and health authorities have yet to provide employers with clear guidance after the Centers for Disease Control and Prevention (CDC) lifted recommendations for face coverings and social distancing for people fully vaccinated for COVID-19.

Safety team, COVID-19 standard

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People are considered fully vaccinated when it has been 2 weeks after their second dose of the 2-dose Pfizer or Moderna vaccine or 2 weeks after the single-dose Johnson & Johnson vaccine.

The U.S. Occupational Safety and Health Administration (OSHA) posted a red-box notice on its website, reading:

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.

The CDC issued an interim public health guideline on May 13 stating that fully vaccinated people no longer need to wear a mask or maintain physical distance from others in either indoor or outdoor settings except where required by federal, state, local, tribal, or territorial laws, rules, and regulations or local business and employer policy.

OSHA acknowledged the CDC’s May 13 guidance and stated that OSHA’s COVID-19 National Emphasis Program and enforcement directive issued March 12 are undergoing review but remain in effect. The agency did not respond to a request for further comment.

The National Safety Council (NSC) on May 14 recommended that despite the new CDC guidance, employers should take a risk-based approach for their specific workplace.

OSHA submitted its COVID-19 emergency temporary standard (ETS) to the White House Office of Information and Regulatory Affairs on April 26. That rule still is undergoing regulatory review.

Where Things Stand in the States

The Michigan Occupational Safety and Health Administration (MIOSHA), which, like California, has a COVID-19 ETS, posted a boxed notice on its website, reading:

MIOSHA is in the process of reviewing both the emergency rules and draft permanent rules. The agency has the flexibility it needs to ensure consistency with public health guidelines and will continue to protect Michigan workers as we work toward ending this pandemic.

MIOSHA will soon post updated workplace rules reflecting the CDC’s recent guidance on face masks for fully vaccinated people. Until then, MIOSHA will consider compliance with the MDHHS [Michigan Department of Health and Human Services] order as good faith to comply when responding to employee complaints or conducting investigations related to COVID-19.

The MDHHS on May 15 added “any fully vaccinated persons” to the list of exceptions to the state’s indoor face mask requirement.

While Virginia Governor Ralph Northam lifted Virginia’s universal indoor mask mandate on May 14, the state’s distancing requirements and capacity restrictions remain in place until May 28. Virginia’s permanent COVID-19 standard, with its requirements for written preparedness and response plans, as well as cleaning and sanitation, personal protective equipment (PPE), social distancing, training and recordkeeping, and ventilation, remains in force until revoked by the state’s Safety and Health Code Board.

The Oregon Occupational Safety and Health (Oregon OSHA) issued a statement on May 19 that an employer does not need to enforce face covering and physical distancing requirements for employees or visitors provided the employer verifies the vaccination status of employees and visitors. However, the face covering and social distancing requirements still apply if an individual claims to be vaccinated but refuses to provide verification of vaccination.

While California’s COVID-19 ETS remains in effect, the CDC guidance complicates the emergency rule’s re-adoption. The California Occupational Safety and Health Standards Board (OSHSB) met on May 20 to consider re-adoption of the state’s COVID-19 ETS, with proposed changes submitted May 7 by the Division of Occupational Safety and Health (Cal/OSHA). However, Cal/OSHA’s Deputy Chief Eric Berg sent a memorandum to OSHSB on May 19, asking the board to delay its vote to allow the agency time to prepare a new proposal for the board.

California’s Health & Human Services Agency Secretary Mark Ghaly, MD, announced on May 17 that “California plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings” starting June 15, according to Berg’s memo.

The New York HERO Act authorized the state’s labor commissioner to establish a COVID-19 safety and health standard, but the state Department of Labor has yet to issue it.