The retreat of the Covid 19 pandemic and taking the first steps toward return to normal life and work is generally seen as a good thing, but it wreaked havoc on labor union dreams of extending strict emergency safety rules to workplaces everywhere.
Called Emergency Temporary Standards (ETS), they were fervently sought by major unions last year, with mixed results. They were rebuffed by the Trump Department of Labor at the federal level, but were embraced by states like California, Oregon and Virginia (which later chose to make its ETS rules permanent for employers).
On his first full day in office, President Biden issued an executive order demanding that federal OSHA create a set of ETS no later than mid-March. However, the agency missed that deadline because of complications stemming directly from the success of widespread Covid vaccinations.
The ETS that OSHA came up with were sent to the White House for review, which then pushed back their release to June.
One problem was that before the ETS could be published, the Centers for Disease Control and Prevention (CDC) announced new guidelines stating that fully vaccinated individuals no longer needed to wear masks or socially distance in most settings. This created confusion among the public, employer, and federal and state regulators.
Since the issuance of new CDC mask guidance, questions have arisen once again about whether the OSHA ETS are needed.
This is not just an academic exercise. Courts have struck down ETS rules published by OSHA in the last century after holding that the purported emergency they were intended to address did not exist, and the agency needed to abide by the normal rulemaking process, including public notice and comment.
On June 9, OSHA finally released the much anticipated ETS and – to quote an ancient Roman poet – the mountain gave birth to a mouse. The ETS rules apply only to hospital and health care workers. This move generated vocal outrage from some of the same union advocates who had fought hard for the standards for a year.
“The Biden Administration has missed a crucial opportunity to protect all workers,” said Jessica E. Martinez, co-executive director of the National Council for Occupational Safety and Health, a union front group.
“This is a new insult on top of the injuries, illnesses and deaths suffered by frontline workers and their families,” she added. “Vaccines have not reached all workers and Covid 19 is not over.”
But confusion was not confined to the federal level. California – which maintains its own workplace safety agency called Cal/OSHA – state bureaucrats have been doing their own version of a one-step forward, two steps back dance in recent weeks, and haven’t done much better.
Following the CDC’s loosening of the mask and social distancing guidelines, most jurisdictions left it to individual employers and owners of businesses that deal with the public to decide whether they would continue to apply mask and distancing rules.
The California Occupational Safety and Health Standards Board – Cal/OSHA’s supervisory body –
initially proposed keeping its workplace ETS requirements, which were stricter than the CDC’s.
This generated a heated response from the public and business owners, which caused the agency to backtrack and take another look at its ETS policy.
After all the controversy and back and forth positioning on the matter, the board voted on June 17 that most vaccinated employees no longer need to wear facemasks in the workplace.
The new standards also eliminate social distancing and the requirement for partitions like the plastic barriers that separate customers and cashiers.
In addition to public input, the board also was influenced by a letter issued by the California Department of Public Health (CDPH). It noted that more than two thirds of adult Californians are now fully vaccinated, the state has a positivity rate below 1%, and Covid 19 case counts are low and stable.
As a result, CDPH said face coverings will no longer be required for fully vaccinated Californians in public settings, except where the CDC advises that all individuals should wear face coverings regardless of vaccination status. These include healthcare settings and long-term care facilities, public transit and sheltering operations.
CDPH also requires facemasks for all unvaccinated individuals in indoor public settings and businesses. Businesses may allow individuals to self-attest their vaccine status, implement vaccine verification measures, and require all patrons wear masks.
CDPH also affirmed that no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.