To Mask or Not to Mask? Ask OSHA

The most recent CDC guidance on masks is again, just guidance.

If you’re like me, you went out this past weekend to Home Depot or your favorite restaurant to find a state of near chaos in terms of people wearing masks or not – and businesses requiring them…or not.

In the wake of the Centers for Disease Control and Prevention’s (CDC’s) most recent update to what vaccinated people can do, there’s been general confusion among businesses and customers alike as to whether they should be wearing masks.

It may help to step back and look at the categories of guidance and rules, who they apply to, and how we might have some clarity in the coming days on when to wear masks at work and in businesses.  

First, for the past 15 months or so, the CDC and other federal agencies have mostly been putting out only guidance – recommendations, really, in terms of mask wearing, social distancing, and other COVID 19 protocols in businesses and workplaces.

There have been a few actual requirements from the feds, i.e., rules that need to be followed. For instance, there were President Biden’s orders on his first few days in office that masks be worn in federal buildings and lands, and on commercial airlines and trains. But in general, states and local governments have been allowed to establish their own rules – or not establish any rules.

The most recent CDC guidance on masks is again, just guidance, and so state and local governments are, again, allowed to establish their own rules. And specific businesses can create their own rules as well, as long as they align with those state and local requirements.  

The CDC’s intent with the most recent guidance on masks, however, was to inform individuals so that they could make personal decisions about safety. The CDC guidance was not necessarily written with the intent that it be used by businesses to figure out how to create safe environments for customers or employees. In fact, the CDC guidance for offices and other specific work environments has not changed substantially since the height of the pandemic.

And that’s okay, because establishing specific workplace safety requirements is OSHA’s job – the Occupational Safety and Health Administration. OSHA, for example, gives employers specific requirements on ladder safety, as well as on how to deal with exposure to infectious diseases in the workplace.

But OSHA, too, has only been giving “guidance” in terms of workplace safety for the past 15 months.

President Biden, in the first few days in office, required OSHA to write actual requirements for COVID safety in the workplaces so that businesses would know exactly what they were supposed to do about masks and social distancing.

OSHA missed its March 15 deadline to release a rule, but some version of the rule has been written, and it’s been at the White House under final review for the past month. Whatever the rule might ultimately say, it should help businesses, not only in terms of confusing messaging, but also in terms of liability – since, as long as businesses follow what OSHA says are safe working conditions, the risk of getting sued by an employee for unsafe work conditions is lessened. 

There are a number of problems, however: first, while the CDC has outlined some things vaccinated people can do that nonvaccinated people can’t, in the workplace, in general, employers have been reluctant to require vaccines or ask employees if they’ve been vaccinated, so OSHA can’t just repeat what the CDC has said.

At this point, nobody knows what the expected OSHA COVID workplace rules might say. I suspect that not even the regulators are sure what they should say.

My suggestion for any business is not to make any drastic changes until we get further news about the rule. 

OSHA may make you push those desks apart again.

Programming Note: Listen to Matthew Albright’s live reporting on legislative issues every Monday on Monitor Mondays at 10 Eastern and sponsored by Zelis.