The Feds Are Coming, Is Your Business Ready? Part 3: OSHA

Recent CDC recommendations on masking has caused confusion for employers everywhere.  Guidance advises that those vaccinated could resume many of their normal routines without wearing a mask.  However, the CDC doesn’t govern employers or fine them for non-compliance, OSHA does. As a result, employers are left wondering if they lift their facemask requirements or not.

The most recent information from U.S. Occupational Safety and Health Administration (OSHA) from January 29th stated that employers should not distinguish between vaccinated and unvaccinated employees.  But doesn’t that contradict what the CDC released in their newest guidance? OSHA did acknowledge the CDC guidelines mid-May, but has not yet specifically advised employers on what to do.  Companies are working around these guidelines (and lack thereof) to build policies that are most fitting to their level of exposure and potential liability. 

In addition to updating mask guidance, you can look for other changes from OSHA.  President Biden nominated Doug Parker to lead OSHA.  Parker currently heads California’s OSHA division (Cal/OSHA).  While his tenure at Cal/OSHA has been brief, his time there strongly suggests the potential for new federal standards and increased enforcement.  Cal/OSHA standards are complex and more stringent than Federal OSHA and provide standards that have no federal counterpart.  They laid the groundwork for many standards that have yet to be enacted at the federal level.  The aerosol transmissible diseases (ATD) standard may be a preview of a federal workplace infectious disease standard, especially in the wake of COVID.  That standard has already sparked a National Emphasis Program and an imminent federal emergency temporary standard (which Parker said would stand up to legal challenges during his confirmation hearing).  

How much of a California flare will he bring to the federal agency and what should you expect as an employer? 

Common consensus is that employers can expect increased enforcement under the Biden administration… more inspections, more citations, less negotiating and more litigating.  The new administration has made it clear they intend to double the number of investigators.  It is not a matter of if, but when, employers will see an uptick in OSHA inspectors knocking on doors.

When OSHA does arrive, it is important for you to have your compliance playbooks at the ready.  You can prepare now, regardless of the current regulatory and enforcement landscape, to better protect your workforce.   

As The Employer Advocate, AAG is happy to work with you to discuss your facemask options, areas to consider before you change your existing policy as well as when an outbreak or complication from a vaccine may be OSHA recordable.