The short answer is that OSHA’s still reviewing the latest CDC guidance related to COVID-19, and the issue remains complex. However, there are other considerations—for human resources as well as environment, health, and safety (EHS)—that relate to this recent subscriber question posed to experts at EHS Hero®.
Q: Now that the CDC has changed their guidance on mask usage, how does that affect our business if we decide to allow vaccinated individuals to remove their masks and not social distance while asking unvaccinated individuals to continue to social distance and wear masks? What is OSHA’s view?
A: OSHA has not yet issued updated guidance in the wake of the CDC’s recent changes to its mask and social distancing recommendations. However, OSHA has posted the following statement to its COVID-19 website:
“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.”
Because current OSHA guidance contradicts the CDC’s recommendations, it was necessary for OSHA to release the above statement and incorporate the CDC’s guidelines by reference as it reviews its own guidance materials.
Regarding enforcement, OSHA uses the General Duty Clause and looks to its guidance to determine whether hazards are “recognized” and whether employers’ health precautions are sufficient to abate the hazards. Due to OSHA’s adoption by reference of the CDC’s May 13, 2021 update, it is unlikely that OSHA will try to establish liability based on alleged exposures from vaccinated, asymptotic employees.
Keep in mind, however, that the CDC guidance is not law and not binding. While many state and local orders and laws are based on CDC guidance, changes to these orders and laws are often made days or weeks after CDC guidance is issued, and often include differences from the initial CDC guidance. So be sure to monitor your state and local rules before changing your company policy.
Finally, if you choose to enforce two sets of policies—one for fully vaccinated employees and one for all others—you will likely have to contend with human resources- related and practical issues. Because imposing different policies based on vaccination status will highlight employee vaccination status based on who is and is not wearing a mask and social distancing, the new policies will likely draw attention to information that would otherwise be confidential. Consequently, it may be necessary to train and guard against discrimination or harassment based on protected status, and it may be helpful to create employee training and policies that prevent employees and managers from inquiring as to someone’s vaccination status or asking why someone is not vaccinated. Additionally, you will have to determine who is going to be tasked with enforcing the rules, how they will go about doing so, and whether the rules will be extended to any customers on the premises.
Obviously this is a complex and murky issue, and it will likely remain so until OSHA and state and local governments updates their guidance recommendations.
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