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Mask Guidelines Pose Challenge to OSHA’s ‘Grave Danger’ Mandate

May 20, 2021, 9:30 AM

OSHA will face a hard time justifying its Covid-19 emergency temporary standard following the CDC’s decision last week to allow fully vaccinated people to not wear masks, employer-side attorneys are saying.

The Occupational Safety and Health Administration must prove that Covid-19 poses a “grave danger” to workers that a regulation can prevent. The White House’s regulatory office has been reviewing an OSHA standard, granting dozens of meetings with union and business groups, even as the pandemic begins to show signs of subsiding. OSHA instructed employers May 17 to follow the new CDC mask guidance for people fully vaccinated against Covid-19.

“The CDC says the risk of Covid infection is minimal for people who are fully vaccinated. That alone will likely weaken OSHA’s argument that this poses a grave danger to employees,” said Rachel Conn, a partner with Nixon Peabody in San Francisco.

The OSHA standard also would need to pass other requirements set by the Occupational Safety and Health Act, said Charles Palmer, a partner with Michael Best in Waukesha, Wis., and leader of the firm’s workplace safety practice.

The law requires OSHA to give “due regards” to recommendations from the CDC’s parent agency, the Department of Health and Human Services, Palmer said. The standard also must be based on the “best available evidence.”

Right now, the recommendations and evidence show fully vaccinated workers aren’t a risk, Palmer said.

About 277 million Covid-19 doses had been administered in the U.S., according to Bloomberg data. Among all age groups, 37.8% had received their required shots and 47.9% had at least one shot.

Before OSHA enacts any standard, the agency should revise it to consider the CDC’s guidance, said Jonathan Snare, a partner with Morgan, Lewis & Bockius in Washington, D.C. Snare was OSHA’s acting chief in the second term of President George W. Bush’s administration.

He said that during his OSHA tenure the final rule for airborne hexavalent chromium exposure was revised at the request of the White House’s Office of Information and Regulatory Affairs before it was issued.

President Joe Biden discusses mask use on Jan. 21, the day he signed an executive order directing OSHA to explore a Covid-19 workplace safety rule.
Photographer: Alex Wong/Getty Images

What’s Left

The CDC’s mask guidance also raises the question of what preventative practices employers would be required to follow under an OSHA standard.

“Simply put, if we remove the mask mandate, there’s not much left,” said Tashwanda Pinchback Dixon, a partner with Balch & Bingham in Atlanta, wondering whether there should be an emergency standard to address contact tracing, recordkeeping, and hand-washing as well.

The OSHA rule will need to address vaccinations, but none of the attorneys interviewed for this story said they believed OHSA would require workers to take the vaccine.

“The vaccine is the most effective protection based upon the evidence available from the CDC,” Palmer said. “OSHA could mandate vaccines, but I don’t think they will.”

OSHA’s only current vaccination regulation is a requirement that workers who could be exposed to hepatitis B at their jobs be offered a vaccine by their employer and sign an OSHA form acknowledging the offer.

Instead of requiring vaccinations, OSHA could expect employers to track workers’ vaccination status and then track whether only fully vaccinated workers are wearing masks.

That requirement wouldn’t sit well with employers.

“A lot of employers don’t have the appetite to police it,” Conn said.

“We’ve been advising our clients not to inquire or have any sort of policy because it’s closely related to medical information” with stringent privacy implications, Dixon said.

Standard Demands

OSHA still is getting political and union pressure to issue a standard.

U.S. Sen. Tammy Baldwin (D-Wis.) told CDC leaders Wednesday at an appropriations hearing that that she’s frustrated with the lack of a standard.

“And frankly, while there’s been much work done on that in this new administration, we don’t have one yet,” the senator said.

In the House, Rep. Bobby Scott (D-Va.), chairman of the Committee on Education and Labor, issued a statement Tuesday following complaints from unions.

“For almost a year and a half, I have been asking OSHA to issue an Emergency Temporary Standard that secures safe workplaces for America’s frontline workers,” Scott wrote. “The Biden Administration has already missed its own March 15 deadline for OSHA to issue this standard, and it is dragging its feet on a review process that has no end in sight.”

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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