CDC Relaxes COVID-19 Face Covering and Distancing Guidelines

On February 25, 2022 the CDC unveiled a brand-new approach to assessing COVID-19 risks and setting mask and distancing recommendations. The CDC’s old tool, which measured the number of COVID-19 cases to determine the relevant level of virus transmission in each community had lost its usefulness as it rendered nearly the entire country as high-risk (95 percent of all counties), even as the number of people getting seriously ill from COVID-19 had dropped significantly this year. 

CDC’s new guidelines measure the impact of the pandemic by looking at three factors week over week:

1. New cases per capita;
2. New COVID-19 related hospital admissions; and
3. The percentage of area hospital beds occupied by COVID-19 patients.

Each county now has a weekly “COVID Community Level Rating” that is either Low (green), Medium (yellow) or High (orange). Each level/color has recommended mitigation strategies  CDC’s tool to identify the level of COVID-19 transmission in your county can be accessed at the following link:  COVID-19 by County | CDC.

CDC recommends masks indoors only in those counties that are currently rated “High,” and the CDC’s new threshold for new cases to constitute High community spread quadrupled from 50 new cases per 100,000 people to 200 cases per 100,000 in the new guidelines. The rationale for the much higher trigger approach is that the as the total number of Americans have immune protection either from vaccination or infection.  Hospitalization rates and deaths will continue to decline, even if case counts are higher. As a result of the CDC’s new tool to measure community spread, less than a third of the country is now experiencing High community spread, a dramatic shift from when most of the country was still in the High category.

1. on Workplace -- If there are no state or local masking requirements, and the CDC has designated the county where your workplace is located to be in the Low or Medium category, employers have no obligation to require employees to be masked in the workplace. And now that federal OSHA is without a COVID-19 regulation, OSHA’s only option for enforcement of COVID-19 related issues is the General Duty Clause and some existing standards (e.g., PPE and respiratory protection). Throughout the pandemic, whenever OSHA has issued a General Duty Clause citation, it has referenced general compliance with CDC recommendations as the feasible means of abatement the employer could and should have undertaken to address workplace spread of the virus. Accordingly, the big shift in CDC guidance about masks and other COVID-19 protocols should result in the same shift in expectations from OSHA.

Physical Distancing -- Although the CDC’s updated guidance does not specifically address distancing, there are a couple of reasons to think there is low risk of OSHA regulatory liability for not implementing physical distancing in areas designated as Low COVID-19 community level, i.e., for treating masking and distancing as a pair. The now withdrawn Vaccination and Testing Emergency Temporary Standard (ETS) did not impose any social distancing requirements. Thus, employers should be reasonably able to defend a policy that does not include social distancing requirements, especially in areas with Low community spread, to meet their general obligations under the General Duty Clause.

Additionally, CDC’s new guidelines speak more generally about COVID-19 safety measures as a whole. The new guidance seems to implicitly recommend implementation of social distancing only in areas of High COVID-19 community levels (for all people) and Medium COVID-19 community levels (for people at high risk for severe illness). Under this interpretation of the new guidance, the full suite of COVID-19 safety protocols (masking, social distancing, health screenings, physical barriers, etc.) would be required for all people in areas of High COVID-19 community transmission, and for all people at high risk for severe illness in areas with Medium COVID-19 community level, but would not be required for anyone in areas of Low COVID-19 community level.

Employers should continue to take appropriate measures to ensure the safety of employees in the workplace from the risk of COVID-19.  Compliance with the new CDC guidelines is a good benchmark for meeting the general obligations under the General Duty Clause.  Regardless, it does appear that employers now have greater flexibility in protecting employees in the workplace consistent with the new CDC guidelines. 

The NASF will continue to work with OSHA officials and industry partners on this issue and provide additional details to NASF members.  If you have any questions or would like additional information on this issue, please contact Christian Richter or Jeff Hannapel with NASF at crichter@thepolicygroup.com or jhannapel@thepolicygroup.com.

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.