Last week, the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance for fully vaccinated people. Now, the Occupational Safety and Health Administration (OSHA) posted an update on its webpage that stated the agency is “reviewing the recent CDC guidance” and the U.S. Equal Employment Opportunity Commission updated their website stating that the agency is also considering the impact the updated CDC statement may have on EEOC guidance that has already been issued about COVID-19 policies and anti-discrimination laws.
The CDC new guidance stated, “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” This obviously created as much confusion for businesses as it clarified.
The OSHA website states that the agency is “reviewing the recent CDC guidance” and advised companies to “please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” It is anticipated that OSHA will update their guidance materials on their webpage, but it is unknown when exactly that will be completed. This update may be complicated by the fact that President Biden signed an executive order on January 21st directing OSHA to investigate drafting an Emergency Temporary Standard (ETS) regarding COVID-19. OSHA has now submitted an ETS to the White House, where it is being reviewed by the Office of Information and Regulatory Affairs. The contents of the ETS have not been publicly revealed, but it would be difficult to see how OSHA could propose a COVID-related emergency safety standard that did not include recommendations regarding wearing masks in the workplace.
There were already significant questions about the wisdom or necessity of OSHA imposing a new emergency COVID workplace safety rule at this stage in the pandemic when businesses are more than a year into making the accommodations necessary to ensure the safety of their workers. The new CDC mask guidance obviously reinforces questions about whether an ETS is needed, and there is speculation that OIRA could simply shelve the new rule. However, there have been no signals from the Administration suggesting how OIRA will act.
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