OSHA Appears Ready To Lift Mask, Social Distancing Instructions For Vaccinated Employees

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP

The federal Occupational Safety and Health Administration is signaling a change to its current guidance on preventing COVID-19 in the workplace. A post on its website yesterday indicates that the Agency may be poised to lift its previous instruction to mask and social distance for employees who are fully vaccinated:

The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

The new CDC guidance was released last Thursday, May 13.

By directing employers to the CDC guidance for appropriate protective measures, OSHA is apparently endorsing for the time being the CDC’s new position that masks and distancing are no longer needed for fully vaccinated persons in most situations. But a few cautions are in order. First, the real-world problem of not knowing who has been vaccinated has not been addressed by OSHA. (However, the Equal Employment Opportunity Commission issued guidance in December 2020 saying that employers could generally mandate employee vaccinations and require employees to prove that they had been vaccinated.) Second, whether OSHA will maintain support for the CDC guidance in the longer term -- particularly in the Agency’s expected Emergency Temporary Standard on COVID-19 -- remains to be seen. Finally, state OSHA agencies are free to continue to require all employees to mask and distance regardless of the CDC guidance or federal OSHA’s position on the subject.

We expect to know more very soon, and will keep you updated on developments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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