When the CDC issued new guidance saying that some vaccinated people need to resume wearing masks in some situations, you may have hoped the Occupational Safety and Health Administration would come out with clear, unambiguous guidelines.

They did come out with guidelines, but they are still a bit unclear. Eric E. Hobbs, an employment attorney and shareholder at Ogletree Deakins explains that masking may not be necessary in every office, per the OSHA guidelines. 

OSHA follows the CDC guidelines with this phrase, "Fully vaccinated people in areas of substantial or high transmission should be required to wear face coverings inside." But they go on to give examples of high risk or high transmission and areas of substantial risk as distinctly non-office in nature. OSHA says these include "manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings."

From this information Hobbs concludes:

Where an employer's workplace a) is not in one of those listed "heightened risk" industries or b) is outdoors or c) includes only vaccinated, not-at-risk employees or d) is not located in an area of substantial or high community transmission, OSHA's position seems to be that the employer need not require that fully-vaccinated employees in the workplace mask.

Let's break that down and apply it to your business. Ask yourself the following questions.

  1. Is your business in a heightened-risk industry? If you have people coming in and out, or your employees are working in close proximity to one another, then yes, and you should require your employees--even vaccinated ones--to wear masks.
  2. Is your business outside? If your business involves construction, amusement parks, or other outdoor-based businesses, you probably don't need to require your vaccinated employees to wear masks.
  3. Do you have unvaccinated employees? Unless you do have a vaccine mandate and you have verified everyone's vaccination status, you undoubtedly have unvaccinated employees. Everyone needs to mask up.
  4. Are you located in an area of substantial or high community transmission? This can change from time to time, but this map (as of July 29, 2021) shows that most of the country is an area of high transmission

Employment attorney Jon Hyman, a partner at Wickens Herzer Panza, says OSHA doesn't go far enough. "OSHA has consistently missed its opportunity throughout this pandemic to establish clear standards to keep employees safe and healthy in the face of a global pandemic. Given the widespread prevalence of Delta and the heightened level of danger and contagiousness it presents, the only way to keep everyone safe is a combination of vaccines and universal indoor masking."

In other words, you can nit-pick and try to find a place where you can justify no masks, but you'd be better off with everyone wearing a mask. Or, best of all, continue to allow as many people as possible to work from home and encourage your employees to be vaccinated. It's our best way out.