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The CDC’s surprise mask-dropping guidance for those who are fully vaccinated against Covid-19 may have killed any effort to require their blanket use in workplaces — a bitter disappointment to unions and other safety advocates who have been pushing the Biden administration to tighten things up on the job, not loosen them.
“It’s a Public Health 101 failure,” said David Michaels, an epidemiologist who led Occupational Safety and Health Administration during the Obama administration who is now a professor at the George Washington University School of Public Health. “By giving advice to vaccinated people, but ignoring the fact that many or most people in many settings will not be vaccinated, the CDC is causing confusion and setting back our efforts to stop this pandemic.”
The White House is in the last stages of finalizing emergency Covid-19 workplace safety rules from OSHA, which unions, management-side attorneys and workplace safety experts broadly expected to include a mask mandate — until the administration’s latest changes to its guidelines last week.
Worker safety advocates now fear the Biden administration is abandoning its promise to issue stringent workplace safety rules employers must follow to protect their workers from the coronavirus, and experts in the field are bewildered.
“Who the hell knows what's gonna happen?” Jordan Barab, the second in command at OSHA during the Obama administration, who is now retired, said of the pending emergency rules. “At this point, it's hard to see, you know, how OSHA actually releases this thing or what it's going to have in it.”
House Education and Labor Chair Bobby Scott (D-Va.) blasted the Biden administration for "dragging its feet on a review process that has no end in sight."
“Nurses and essential food and retail workers are expressing serious concerns that the CDC’s new guidance on masks, coupled with the Biden Administration’s failure to issue an enforceable workplace safety standard, is once again forcing workers to rely on an honor system that has been a tragic failure," he said in a statement Tuesday.
On Monday, OSHA advised employers to follow the CDC’s new guidance for “measures appropriate to protect fully vaccinated workers.”
The CDC’s guidance said that fully vaccinated people — except those in health care settings, correctional facilities and homeless shelters — can resume activities indoors without wearing masks or physically distancing, even if some in their group are unvaccinated.
OSHA said it was reviewing the new CDC recommendations and would update its own guidelines "accordingly.”
“There's no coordination,” Michaels, the former OSHA chief said. “The CDC didn’t coordinate with either OSHA or EEOC. And that's resulted in chaos in the workplaces across the country.”
Attorneys who specialize in federal safety law say they would be surprised if CDC and OSHA went different directions on masking rules. OSHA rules are strongly informed by the CDC’s guidelines, which have been changed twice by the Biden administration in less than a month.
“The last thing employers want to do is change the policy that changed back. That's really the worst thing of all worlds. So, trying to predict what OSHA is going to do has been somewhat of a challenge,” said David Barron, labor and employment attorney at Cozen O’Connor. “You would think that OSHA wouldn’t say something different than the CDC.”
Unions including National Nurses United and the United Food and Commercial Workers say the new guidance is dangerous for workers and flouts the medical community's understanding on how the virus spreads.
The nurses union argues that the studies cited by the CDC to back up its policy change "present data that is incomplete, not yet peer reviewed, potentially biased, or show poor statistical certainty."
After the CDC announcement, some major employers, such as Walmart, quickly announced plans to let their fully vaccinated employees work without masks in regions where that would be permitted. Others have decided to continue requiring masking for now, creating a patchwork of approaches across the country.
Michaels cautioned that if employers implement the CDC’s recommendations to relax masking and social distancing rules for vaccinated people at work, it could cause a backslide in efforts to contain the coronavirus. Currently, only 37 percent of the U.S. population is fully vaccinated, according to the CDC.
“We know that the workplace exposures are one of the drivers of the pandemic,” Michaels added. “If workers get sick and they spread it to their families, in their communities, it will only be harder to control the pandemic.”
Safety experts’ main criticism of the CDC’s guidance is that it fails to address the workplace at all, creating confusion and ignoring conditions some workers face in some industries, where there is crowding and poor ventilation.
“The new guidance fails to address mitigation measures needed to protect workers in workplaces where large numbers of vaccinated and unvaccinated individuals work in enclosed spaces, including meatpacking, grocery stores, warehouses and food processing where large numbers of workers have been infected and outbreaks continue to occur,” said Rebecca Dixon, executive director at the left-leaning National Employment Law Project.
NELP is pushing the CDC and OSHA to “jointly and immediately make clear” that workplace Covid-19 mitigation measures like masking, ventilation and physical distancing to protect workers “are still needed in many workplaces.”
Businesses have for months been bracing for the mandatory workplace safety rules President Joe Biden campaigned on. In a January executive order, Biden instructed the agency to decide whether to issue the rules by mid-March. But the rules weren’t sent to the Office of Management and Budget for final review until April 26.
As POLITICO reported, several senior White House officials said the CDC did not warn them the agency was going to recommend vaccinated people could forego masks until the morning of its announcement. And officials inside the CDC, White House and HHS have often disagreed on whether to loosen restrictions for vaccinated individuals.
Once the OSHA workplace rules clear the White House budget office, they will become public and go into effect. However, states that run their own occupational safety and health programs will have the ability to issue stricter workplace rules as they see fit.
More than a dozen states have issued their own Covid-19 rules already. For example, California’s emergency Covid-19 safety standard requires masking and social distancing, although the state is considering amendments to the rule later this week.
And despite the green light from the CDC for fully vaccinated people to remove their masks, some states, big retailers and industry groups say they will keep their mask rules in place for the time being.
California announced on Monday that it was not lifting its non-workplace mask requirements until June 15.
Chip Rogers, president and CEO of the American Hotel & Lodging Association, said in a statement Monday that hotel employees “should continue to wear face-coverings indoors for the time being” until the CDC provides further direction on how its guidance applies to business.
“For vaccinated employees working outside, or not in close contact with others, our guidelines will permit hotels to implement protocols easing face-covering requirements,” Rogers said.
But other companies already jumped to change their policies soon after the CDC issued its new recommendations last Thursday.
Walmart, the country’s largest retailer, and subsidiary Sam’s Club, said Friday it would stop requiring masks — depending on state and local rules — for fully vaccinated staff and customers, effective Tuesday.
“Unvaccinated associates must still wear face coverings, per CDC guidance,” the company said. “Some associates may choose to continue to wear masks, and as part of our value of respect for the individual we should all support their right to do so.”
Business groups that are opposed to mandatory Covid-19 rules say that while the change from the Biden administration regarding masks has created optimism among employers, it still raises a host of unknowns.
Management-side attorneys have cautioned employers throughout the pandemic to be careful when asking follow-up questions after inquiring about the vaccination status of their employees, which the Equal Employment Opportunity Commission has warned can run afoul of federal anti-discrimination laws.
The agency also announced Monday that it was considering the impact of the CDC’s new advice on masking on its Covid-19 anti-discrimination guidelines.
“Embedded in it are a lot larger questions,” Marc Freedman, vice president of employment policy at the Chamber of Commerce, said of the new CDC masking advice. “For an employer to say employees no longer have to wear a mask, it's all about their vaccination status. So it implies the employer has to inquire about their vaccination status and rely on what the employee tells them.”