OSHA Punts Vaccine and Masking Issues to CDC, Leaving Employers with Questions

May 21, 2021

The Occupational Safety and Health Administration (OSHA) refrained from issuing its own new guidance in response to the CDC’s announcement that fully vaccinated people no longer need to wear a mask or socially distance in non-health care settings, leaving employers to figure out how the CDC guidance impacts workplace masking and social distancing policies. 

“Please refer to the CDC guidance.”  Instead of issuing new guidance in accordance with the CDC’s recommendations, OSHA has instead said that it is “reviewing the recent CDC guidance and will update our materials…accordingly.  Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to fully vaccinated workers.”  

The lack of guidance leaves employers to determine how to adjust their workplace policies in light of the new CDC recommendations for vaccinated individuals.  The recommendations seem to conflict with OSHA guidance from January that directs employers to refrain from distinguishing between vaccinated and unvaccinated workers.  However, OSHA’s recent referral to the new CDC guidance may be a tacit acknowledgement that employers may now do just that. 

Even if employers can assume that they may now allow vaccinated workers to go mask-less, distinguishing between vaccinated and unvaccinated employees presents its own set of problems.  Such an approach might force employers to require proof of vaccination from employees, which could create confidentiality obligations and other legal issues under the ADA and other employment laws. 

Webinar on the CDC mask guidance next week:  HR Policy is hosting a webinar on Tuesday, May 25th from 12–1 p.m. EDT to discuss the impact of the CDC’s new guidance on companies’ masking protocols.  We will hear from Laurie Havanec, Chief People Officer, CVS Health and Margaret Reddick, Vice President Total Rewards, Fortune Brands Home & Security as well as other CHROs on how they are reacting to the new guidance.  Find more information and register for the webinar here

Outlook: Although a stringent Emergency Temporary Standard (ETS) is the wrong approach to ensuring workplaces are safe from COVID-19, the need for updated guidance from OSHA is clear, as employers have largely been left in the dark over whether following the CDC guidance might run afoul of workplace safety law.  The Association continues to engage with the Department of Labor on the issue, and will be hosting a webinar in the coming weeks on employer courses of action in light of a potential ETS or new OSHA guidance.