Despite CDC mask guidance, Biden admin may still issue workplace mandate

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The Occupational Safety and Health Administration (OSHA) may still issue a workplace mask mandate consistent with a January executive order from President Biden despite new Centers for Disease Control and Prevention (CDC) guidelines that vaccinated Americans do not need to wear masks indoors. 

Biden's Jan. 21 executive order directed his administration to "consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary." The order set a deadline of March 15, which was missed.

White House press secretary Jen Psaki said at the time that the White House was giving OSHA, which is housed in the Department of Labor, "time to get it right and time to ensure it's right." 

It was expected that an emergency temporary standard (ETS) on mask-wearing and potential other coronavirus mitigation practices would eventually be approved. A draft ETS, which is not publicly available, was sent to the Office of Management and Budget for review in late April. 

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But CDC guidance earlier this month potentially changed the situation, with the health agency issuing what many saw as an unexpected reprieve for vaccinated individuals from strict public health measures.

It's unclear how those CDC guidelines might affect whether an ETS is issued by OSHA or what it might look like. A Department of Labor spokesperson did not address a question on how the CDC guidelines might affect a potential ETS on Monday. "The agency is committed to continually improve our ability to protect workers from exposure and hazards related to COVID-19," the spokesperson said. 

A group of House Republicans on the Committee on Education and Labor sent a letter to Labor Secretary Marty Walsh on Monday asking him to put the brakes on any new workplace rules considering the proliferation of vaccines and the new CDC guidance.

"We write to express our strong disapproval of your decision to move forward with this ill-advised and unnecessary rulemaking," the group wrote.

"Instead, we encourage DOL to continue working with CDC on COVID-19 guidance and update OSHA's guidance to align with the latest science to ensure the nation's economic recovery continues and Americans can continue to return to work," the Republicans also said. 

The Education and Labor Committee Republicans noted that "every worker in the United States is eligible for vaccination, and businesses have been authorized by federal and state governments to relax restrictions based on the latest science from the CDC."

"It is therefore unlikely that DOL could demonstrate that COVID-19 is presently a grave danger to workers and that an ETS, which would place new mandates on employers that do nothing to improve workplace safety outcomes, is necessary to protect workers," they said. 

Indeed, it's very rare for OSHA to issue an ETS – it hasn't done so since 1983, according to the Congressional Research Service (CRS). 

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OSHA determined that an ETS was necessary to address "popcorn lung" in 2006 but eventually didn't issue the rule. The CRS said that was because the agency was no longer sure it could meet the "grave danger" standard required for it to issue an ETS after the industries that used the chemical that caused popcorn lung took mitigating actions.

The "grave danger" standard and other rules that govern the creation of an ETS could also lead to judicial challenges to a new federal face mask rule or other rules regarding coronavirus in the workplace. 

Notably, the most recent ETS from 1983 – which aimed to reduce asbestos exposure in the workplace – was struck down in federal court. According to the CRS, the ruling was "on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would ultimately die because of exposures to asbestos during the six-month life of the ETS."