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The CDC Revises COVID-19 Mask Recommendations For Fully Vaccinated Individuals: Implications For Massachusetts Employers
On July 27, 2021, the Centers for Disease Control and Prevention (“CDC”) revised its COVID-19 mask guidance (the “Revised Guidance”), recommending that all individuals, regardless of COVID-19 vaccination status, resume wearing masks in “public indoor settings” in areas of the United States that exhibit “substantial” or “high” COVID-19 transmission rates. This announcement revises the CDC’s May 2021 mask guidance that indicated that fully vaccinated individuals could discontinue mask wearing and social distancing in most settings.
At present, there are five counties in Massachusetts that qualify as “substantial” or “high” transmission areas, under the Revised Guidance:
High Transmission:
- Barnstable County
Substantial Transmission:
- Bristol County
- Dukes County
- Nantucket County
- Suffolk County
The Revised Guidance does not specifically define the types of “public indoor settings” where masks should be worn. As such, it is unclear as to whether the Revised Guidelines are intended to apply to work environments.
Currently, Massachusetts requires masks only in the following settings: Public and Private Transportation; Healthcare Facilities; Congregate Care Facilities; Emergency Shelters; Houses of Correction; Health Care and Day Services Facilities. There is no general mask mandate in Massachusetts, and there are no rules that require masks or social distancing, generally, in work environments. This present Massachusetts standard is expressly based on the CDC’s prior May 2021 mask guidance. However, in recent public remarks, Massachusetts Governor Charlie Baker has indicated that the Commonwealth is now considering new general safety standards in light of the Revised Guidelines.
Employers should continue to monitor applicable regulations and reopening guidance, including masking requirements and recommendations, in jurisdictions where they are located.
See our complete COVID-19 Resource Collection for additional information, or contact a member of the Morse Employment Team.
The Complex Web of Employment Law Regulations Expands: The Latest COVID-19 Considerations for Massachusetts Employers
By: Matthew Mitchell & Amanda Thibodeau
In response to the COVID-19 outbreak, government regulators have created a web of legal requirements intended to promote employee safety and economic stability. The count, scope, issuance rate, and complexity of these new rules are unprecedented.
Compliance with this ever-expanding, and sometimes inconsistent, landscape of COVID-19 regulations is a clear and present challenge for employers.
We’ve prepared a summary of the most recent COVID-19 regulations that apply to Massachusetts employers, as of July 2020. It is critical that Massachusetts employers identify, understand, and comply with these standards.
Learn more in our COVID-19 Alert.
OSHA Publishes FAQs on Face Coverings in the Workplace
The Occupational Safety and Health Administration (OSHA) recently published additional recommendations in the form of FAQs related to the use of face masks in the workplace. The new guidance covers the differences between PPE, cloth face masks, and surgical masks, and what the current OSHA regulations require of employers. OSHA clarifies that the new FAQs do not place new regulatory burdens on employers, but are instead provided to assist employers in providing a safe workplace under current regulations.
The Occupational Safety and Health Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with “a workplace free from recognized hazards likely to cause death or serious physical harm.” This generally requires employers to adopt strategies and other control measures to protect their workers from known hazards. While cloth face coverings are encouraged by the Centers for Disease Control (CDC), current OSHA regulations do not require cloth face coverings. However, OSHA does have regulations and standards on when PPE is required or recommended. It also notes that cloth face coverings or even surgical face masks are not a substitute for PPE, such as N95 masks, under OSHA’s PPE standards.
OSHA’s FAQs detail the differences between cloth face coverings, surgical masks, and respirators, and the merits and protections of each. OSHA recommends that even though cloth face coverings are not required under its regulations, employers may choose to adopt such a policy as a control measure, and OSHA does encourage their use. OSHA notes, however, that whether an employer chooses to require or encourage masks will be highly dependent on the specific circumstances of each worker, workspace, and work requirements. In some instances, the wearing of a face covering may increase other hazards, and employers should be cognizant of evaluating such risks when forming any policies on face coverings. OSHA also emphasized that face coverings are not a substitute for social distancing measures, and employers must still adopt such strategies with or without face coverings.
OSHA additionally made clear that for industries or situations where respirators and other PPE are required by the presence of applicable workplace hazards, the regulations require that employers attempt other mitigation and control strategies before requiring respirators – but when respirators cannot be obtained due to supply issues (or other unavailability), employers cannot substitute cloth or surgical masks. For example, where asbestos is present and creates an imminent danger to the worker, the employer must attempt other control issues (engineering, administrative, and work practice controls) first. If the control measures do not eliminate the hazard and respirators are not available, the employer must delay the task, if feasible, to avoid exposing the worker to the hazardous condition.
For more information, please contact Amanda Thibodeau.
EEOC Updates COVID-19-Related Employer Guidance
The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related towards warning employers against falling into traps related to age discrimination or age bias when bringing employees back to work facilities, as well as discrimination based on other factors such as race or national origin, and pregnancy and sex.
Learn about the EEOC’s specific guidance related to age discrimination, harassment and discrimination based on race or national origin, and pregnancy and sex discrimination in our COVID-19 Alert.
EEOC Issues Guidelines with Respect to COVID-19 “Higher Risk” Employees
The Centers for Disease Control and Prevention has identified certain groups of individuals as “higher risk” for severe illness from COVID-19.
A growing number of states have effected, or have announced, plans that relate to an easing of shelter-in-place and business closure orders. Many of these plans incorporate specific instructions that relate to higher risk employees, including instructions that exclude higher risk employees from worksites, under certain circumstances.
As emphasized in a recent federal Equal Employment Opportunity Commission (“EEOC”) guidance, state re-opening standards that relate to higher risk employees must be interpreted, and applied by employers, in accordance with federal Americans with Disabilities Act anti-discrimination standards.
Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize the EEOC Guidance in our COVID-19 Alert.
CDC Recommends New Workplace Sanitation Standards
The Centers for Disease Control and Prevention (CDC) has issued new Guidance related to the re-opening of public spaces, workplaces, businesses, schools, and homes following COVID-19 shutdowns. Among other instructions, the Guidance offers very specific workspace sanitation standards that are designed to address continuing COVID-19 infection risks.
It is anticipated that this CDC Guidance will be a bedrock component of state and federal government policies related to the re-opening businesses following COVID-19 shutdowns. As such, it is critical that employers understand, and be in a position to execute on, the recommendations contained in the Guidance.
Of particular note, the Guidance instructs employers to:
- Develop formal sanitation plans that include strategies, that are customized for the specific elements of the employer’s workplace, for cleaning and disinfecting employee environments in preparation for, and following, business re-openings.
- Use specific, recommended disinfectant techniques for particular environments and surfaces.
- Adopt formal safe behavioral practices, including social distancing and employee hygiene and PPE standards.
- Consider changes to practice and procedures aimed at reducing infection risk, including changes to the way and frequency public spaces are used.
The Guidance includes a Cleaning and Disinfection Decision Tool that distills the advice into a form that may be incorporated into an employer policy document.
Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.
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