In a surprise move today, CDC followed the lead of the various states that have lifted their masking and physical distancing recommendations. However, CDC’s new recommendations come with a twist. The CDC’s recommendations only apply to fully vaccinated people in non-healthcare settings.  Here’s what your business should consider as it decides whether to “unmask.”

The May 13, 2021 CDC Interim Public Health Recommendations for Fully Vaccinated People states that fully vaccinated people no longer need to wear a mask or physically distance in any non-health care setting (except prisons and homeless shelters and public transportation), except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. According to the CDC, prevention measures (including masks and physical distancing) are still recommended for unvaccinated people.

Employers who are interested in relaxing mask requirements in the workplace should first consider the following.

  • Check state and local laws and orders.  If a state executive order or local order requires employers to have employees wear masks or impose physical distancing requirements, employers should follow those rules.  In addition, keep in mind that some states have their own OSHA rules (e.g., VA, MI, CA, OR) or recently enacted laws such as New York’s Hero Act which we discussed here.  Employers must follow all applicable state and local laws and standards regardless of CDC’s relaxed recommendations.
  • OSHA has yet to come out with new guidance and currently recommends that all employees must continue to follow protective measures such as wearing a face mask and remaining physically distant regardless of vaccination status.  However, this guidance was issued on January 29, 2021, so it is now several months old.  It is unclear whether OSHA will change this guidance given the CDC’s position.
  • Determine whether removing mask and physical distancing requirements makes sense given your employee populations and preferences.  Many employees may be reluctant to return to work without masking and physical distancing rules in place.  Assess whether removing such requirements is likely to help or hurt the effort to return employees to work.  Generally, employers can choose to continue to require masks and physical distancing regardless of vaccination status.
  • Consider how removing mask and physical distancing requirements will impact your customers.  You may also want to maintain a consistent practice across all your locations so that you are not dealing with a patchwork of state and local COVID-19 requirements.  To the extent you decide not to relax your requirements, you may need to accommodate customers who have medical conditions that make wearing a mask unsafe.
  • Consider whether it makes sense to continue to require or encourage physical distancing (regardless of masking) until more is learned, for everyone’s comfort and to avoid isolating unvaccinated individuals who may have protected reasons for being unvaccinated or who may fall into a protected classification, or where any isolation or exclusion may set back diversity efforts.  And, of course, if an individual needs an accommodation in connection with masking for religious or medical reasons, engage in the interactive process.
  • Clarify that fully vaccinated employees and customers are permitted to wear masks or face-coverings.
  • Reinforce that employees must respect employee and customer decisions to wear masks and engage in physical distancing regardless of their vaccination status.
  • Avoid actions that would suggest a correlation between vaccination status and mask wearing and/or employee observance of other COVID-19 safety practices.
  • Consider whether and how the company will monitor whether unvaccinated employees are properly wearing masks and engaging in physical distancing practices.  It is lawful to ask employees if they are vaccinated, however, asking employees why they are not vaccinated may implicate the Americans With Disabilities Act.  To enforce such a rule, employers will need to know who is vaccinated. If such information is gathered, the best practice is to treat this information as confidential. Make sure it is securely maintained with limited access.  Employers may also consider having all employees certify that if they are not fully vaccinated they will continue to wear masks and physical distance.
  • If you choose to relax your mask and physical distancing requirements, make clear that fully vaccinated employees should make their own personal decision regarding whether to wear a mask and physically distance at work.  In this manner, if an employee chooses not to wear a mask, it will be the employee who is disclosing his or her vaccinated status.
  • Consider adopting a formal policy or issuing a communication clarifying the company’s policy and position on these issues so that everyone knows your expectations.
  • If you have a union, consider whether you need to bargain with the union over changes to your COVID-19 policy and practices.

 

Employers are sure to have many questions regarding how this new guidance should impact their COVID-19 policies and practices. Jackson Lewis attorneys look forward to helping you make these decisions.

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Photo of Katharine C. Weber Katharine C. Weber

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group.

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Francis P. (Frank) Alvarez is a principal in the White Plains, New York, office of Jackson Lewis P.C. He is the founder and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group.

Photo of Sheri L. Giger Sheri L. Giger

Sheri L. Giger is a principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. She is co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group.

Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from…

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from vaccine mandates to the Dobbs response, to ESG and the attacks on DEI, to the impact of Loper Bright. The combination of Patty’s ability and tenacity to understand and apply workplace law to nuanced legal questions and specific situations results in clients perpetually asking this initial question, “What does Patty think?”

Patty is the National Head of the firm’s Emerging and Cross-Disciplinary Issues. She has over 25 years of experience representing and defending employers in nearly every form of employment litigation, including class actions. She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, OSHA, the OFCCP, and the NLRB, in addition to various state agencies.

Focusing on the best possible outcome for the client Patty takes a 360-degree view, working with employers to avoid litigation by developing effective policies and practices, including harassment policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

Patty is a core team member of the firm’s Disability, Leave & Health Management practice group and a leader of the Religious Accommodation Team. She provides practical advice to help companies respond to remote work challenges, paid and unpaid leave situations and the most challenging accommodation requests, all of which have been exacerbated by the pandemic, hybrid work and changes in the law.

Photo of Jenifer M. Bologna Jenifer M. Bologna

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which…

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which they operate.

Jenifer specializes in preventative advice and counsel on a nation-wide basis, regularly advising clients on multi-state employment law issues to address an increasingly remote and hybrid workforce. In addition, she supports employers in navigating the complex and growing body of federal, state and local leave, accommodation and benefit laws that impact an employer’s response to employees who are injured or ill, have family care responsibilities or need time to bond with children.

Jenifer’s extensive counseling experience allows her to provide nuanced advice that helps employers effectively respond to the legal and business challenges posed by the varying array of workplace employment laws. Utilizing creative legal strategies and practical advice, she guides clients through these complex issues that often demand individualized solutions.

Jenifer’s goal is to minimize her clients’ litigation risk by working with them to implement preventative strategies and constructive solutions. As such, she regularly assists employers with policy and process development or improvement, including absence management and accommodation protocols and multi-state employment policies. Understanding there is no one-size-fits-all approach, Jenifer works with clients to develop an employment law compliance strategy that best fits their specific needs.

In addition to advice and counsel, Jenifer frequently speaks on disability and absence management issues and employment law compliance, including regularly conducting workplace training on these topics.