Employers’ attorneys say the Centers for Disease Control and Prevention’s (CDC) new move to tighten its COVID-19 guidance following a wave of infections by the “Delta” virus variant has created fresh uncertainty on whether vaccinated workers should be required to wear face coverings, and are pushing OSHA to provide an answer.
After CDC issued its July 27 guide urging vaccinated people to cover their faces in “public indoor settings” where coronavirus transmission rates are “substantial” or “high,” in order to help stem the spread of the more-contagious “Delta” COVID-19 variant, employers immediately questioned which indoor workplaces should qualify as “public” places under the guide -- but have yet to see a definitive answer, according to one law firm.
“The term, ‘public indoor settings,’ cannot be presumed to be the equivalent of the term, ‘indoor settings’; the word, ‘public,’ as a modifier of ‘indoor settings,’ has to mean something. So what does the term mean, then, when it comes to workplaces and employers’ OSHA compliance?” asks an Aug. 3 blog post for the firm Ogletree Deakins.
But rather than offering its own interpretation, the post argues that there can be no certain answer on the subject without new guidance: “The critical takeaways are that we do not know the answer to that question yet and that we are not going to know until OSHA weighs in.”
The agency last updated its pandemic guidance to general-industry employers on June 10, just a day before it unveiled the emergency temporary standard (ETS) for healthcare workplaces, and has not otherwise addressed the new CDC recommendations.
That silence has spurred conflicting interpretations of the “public indoor settings” language, the post says, as “Some commentators believe that every indoor setting outside of a person’s home or other private arena, and therefore every indoor workplace, qualifies as public,” because they allow people from separate households to mingle, while “Others believe, essentially for the same reason, that every common area in an indoor workplace qualifies as public, though the rest of the workplace might not.”
For instance, another employer-focused law firm, Conn Maciel Carey, wrote in a July 28 post that CDC’s exemptions in the new guide for certain workplaces appears to be a clear signal that “public indoor settings” should be read broadly to include work sites.
“The idea that workers in certain types of workplaces -- correctional facilities and homeless shelters -- are exempt from the general recommendations in the July 27th guidance, indicates that workers in other types of work environments are intended to be covered by it,” that post says.
And both firms note that even though the ETS does not apply to general industry, OSHA can take enforcement action against employers that break with CDC guidance on face coverings through the OSH Act’s general duty clause.
“So even before OSHA changes its guidance, there is risk in not adjusting workplace policies to keep up with the CDC,” Conn Maciel Carey writes.
But the July 28 post notes that even applying the CDC guide to any workplace “where there is the potential for exposure to another individual” will still put a burden on employers to track COVID-19 spread in their area, since the new requirements apply specifically in areas where spread of the coronavirus is “substantial” or “high” by CDC’s metrics.
“To the extent that OSHA decides to track CDC’s guidance exactly . . . that will require employers to monitor COVID-19 data in their areas,” the firm writes.
CDC tracks COVID-19 spread at the county level, using two measures over a rolling seven-day window: new cases per 100,000 people, and the rate of positive results in testing for the virus.
For new cases, 50 to 99.99 infections per 100,000 people is considered “substantial,” and 100 or more qualifies as “severe.” The “substantial” range for test positivity rates is 8 to 9.99 percent, while any higher figure is “severe."
When the two measures conflict, CDC uses the higher rating to assign a county-wide label, so “moderate” case levels but “severe” test positivity would result in an overall “severe” designation, triggering the new mask mandate. -- David LaRoss (firstname.lastname@example.org)