OSHA Issues Revised Guidance Following the CDC: What Does “Recommended” Mean?

For those who attended our Zoom presentation last week, you know that as of that time OSHA had not yet issued detailed guidance in response to the recent CDC masking recommendations. That changed on Friday, August 13. OSHA issued an update to its document entitled “Protecting Workers Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

This Guidance essentially adopts the recommendations from the CDC’s July 27 update regarding masking and testing recommendations for those who are fully vaccinated. The document addresses both the general masking issue and recommended procedures in the event of exposure to COVID. Employers are strongly advised to review the guidance.

This can be found at:

www.osha.gov/coronavirus/safework

First, the guidance says that:

OSHA “incorporates” CDC’s recommendations for fully vaccinated workers in areas of substantial or high community transmission. It states that employers and workers should use this guidance to “determine any appropriate control measures to implement.”

The guidance reiterates that the CDC recommended:

1. Wearing masks in indoor public settings to prevent exposure and infection regardless of vaccination status.
2. People choose to wear a mask regardless of their community’s level of transmission. Particularly if individuals are at risk, someone in their household is at increased risk of severe disease, or is not fully vaccinated.

Second, OSHA adopts the CDC’s recommendation that even fully vaccinated people should be tested 3-5 days following known exposure to someone with suspected or confirmed COVID-19. Wearing a mask in public indoor settings for 14 days after exposure or until a negative test result.

Finally, OSHA emphasizes the importance of vaccination. It “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects. OSHA also “suggests” employers consider “adopting policies” requiring workers to get vaccinated or regular COVID-19 testing.

In addition to mask-wearing and physical distancing, if they remain unvaccinated. Please remember that this guidance is for non-healthcare places of employment. Healthcare workplace settings continue to be covered by OSHA’s prior mandatory Emergency Temporary Standard.

What binding impact does this have on employers?

The guidance says that the recommendations are “advisory in nature.” Informational content is intended to assist employers in providing a safe, healthful workplace free from recognized hazards causing or likely to cause death or serious physical harm.

The guidance repeatedly uses the term “recommendation.” It is unclear, as was the CDC guidance, whether these recommendations are truly that or should be considered mandatory. There does not appear to be any clear answer to this yet.

However, OSHA’s guidance makes reference to its General Duty clause. This could hint that it considers compliance necessary to meet the general duty obligations. If interpreted that way, wearing masks in areas of high or substantial transmission would be more than simply recommended.

Certainly, to be most protective, employers could implement a requirement for masking in “indoor public spaces” at least in areas of high or substantial transmission. Of course, that designation can change on a day-to-day basis. This makes the implementation that much more challenging.

We will be talking more about this as more information is forthcoming. In the meantime, all employers are strongly encouraged to consider the situation. Make a determination as to what the current policy will be.