On May 17, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its COVID response webpage in reaction to guidance from the Centers for Disease Control and Prevention (“CDC”) issued on May 13, 2021. The CDC guidance states that individuals who have received a full vaccination regiment against the novel coronavirus that causes COVID-19 do not have to wear masks in most settings both indoor and outdoor. The guidance specifically excludes healthcare settings, areas of dense concentration of people such as public transit, and areas where the majority of people are ineligible for vaccination, such as schools and childcare facilities.
In a banner added to their website, OSHA acknowledges the change in guidance and promises updated standards in the near future. Until updated standards are produced, OSHA encourages employers to comply with CDC guidance for measures to “appropriately protect fully vaccinated workers.”
Critically for employers, the mask guidance from CDC only applies to workers who have fully completed a course of vaccination, including the two-week period following the last shot in any regiment to maximize antibody production. The CDC guidance also specifically maintains masking guidance for unvaccinated individuals. Current guidance from the Equal Employment Opportunity Commission (“EEOC”) allows employers to ask their employees about their COVID vaccination status but requires that the employer keep that information confidential.
As a result, employers who are not aware of the vaccine status of employees or know that some employees are not vaccinated should be cautious in removing the types of mask requirements supported by OSHA’s current National Emphasis Program commenced on March 12, 2021. Before making any changes to masking policies, Employers should review any state or local masking requirements that remain in effect. Employers who do decide to end employee masking requirements for vaccinated employees should consider documenting a risk assessment to support that decision and be ready to point to OSHA’s webpage to support their decision if questions arise.
Throughout the pandemic, Jackson Kelly’s Workplace Safety & Health and Labor & Employment practice groups are ready to assist clients in navigating the continually shifting requirements as events and regulations change.