The Centers for Disease Control and Prevention (CDC) has relaxed its guidelines for facemasks at a time when states and localities are rushing to loosen their mask mandates and other Covid 19 workplace and social restrictions.
The new CDC guidance published on Feb. 25 updates the guidelines it issued in August 2021. While the CDC guidances are not mandatory, OSHA relies on them as the basis for enforcement.
“OSHA’s current Covid 19 guidance references the prior CDC recommendations, and will undoubtedly be updated to conform to the new recommendations,” points out attorney Fiona W. Ong, who is with the law firm of Shawe Rosenthal.
“Compliance with the CDC’s recommendations clearly establishes that employers are also meeting their obligation under the General Duty clause of the Occupational Safety and Health Act to provide a safe workplace.”
The new CDC guidance no longer distinguishes between vaccinated and unvaccinated persons in regard to its masking guidance. In addition, it has revised the metrics by which it evaluates Covid risk. Counties are divided into low, medium and high-risk levels, based on hospitalization rates, hospital capacity and total new cases.
Attorneys for the law firm of Seyfarth Shaw also explain that agency continues its recommendation that employers rely on “layered prevention strategies,” which include staying up to date on vaccines and wearing masks, to prevent illness and a potential strain on the healthcare system.
The centers’ specific masking recommendations, organized in accordance to the different levels of community exposure are:
Low Covid 19 Community Level — The new guidelines do not recommend masking in any setting, leaving mask use up to the individual at this level. However, the CDC continues to urge employers to stay up to date on Covid-19 vaccine recommendations and engage in testing when employees experience symptoms.
Medium Community Level – Those who live in these counties who are either immunocompromised or at high risk for severe illness; or who live with someone who is at high risk for severe illness, are urged to continue wearing a mask while indoors in public settings. Employers in this medium level community also are urged to stay up to date on vaccines and to test if symptoms appear.
High Community Level – People should continue wearing well-fitting masks while indoors in public, regardless of vaccination status or individual risk. For those who are immunocompromised or at high risk of severe illness, the CDC also recommends wearing well-fitting masks or respirators.
Keep in mind that state and local jurisdictions may still impose restrictions beyond those allowed by the CDC, so it is vital to check those mandates before taking any of the recommended actions.
In high level counties, where the workplace is also accessible to the public, Ong recommends that all employees – as well as vendors, clients or other visitors – should be masked regardless of vaccination status.
In counties at the low or medium levels or in non-public workspaces in high level areas, employees also don’t need to wear masks (except when recommended by their doctors). In medium level counties with employees who at high risk of severe illness, employers may want to require masking and social distancing protocols in common areas.
When it comes to outdoor work, masks don’t appear to be required regardless of the county risk level or employees’ vaccination status. In workplace lunch or breakrooms located in low and medium risk counties, employees may be allowed to eat together, regardless of vaccination status.
Although eating and drinking is one of the identified exceptions to OSHA’s workplace masking guidance, employers in high risk counties may wish to prohibit communal eating or to require social distancing during the shared mealtime.
Because the vaccine is not 100% effective, some vaccinated employees will contract the virus. If an employee develops symptoms following exposure, they should isolate according to CDC guidelines, seek a medical evaluation, and be tested.
Those testing positive should isolate. Employees with symptoms or who have tested positive may be able to work remotely or may need leave. Ong also notes that if sick or Covid leave is available or mandated by state or local law, they will be entitled to take it during the isolation period.
“Employers should realize that there may be resistance to stricter protocols from some employees, managers and visitors, and be prepared to address that,” she says.
“Clear and specific communication about what the protocols are and why they are required is helpful. And an employer can usually discipline employees for failing to comply with stricter employer-mandated protocols.”
