By Allison Pearson Rhodes of Friday Eldredge & Clark
On Thursday, May 13, the CDC made significant changes to its guidance regarding mask wearing for vaccinated individuals. (Click here to read) The new guidance states:
"Fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance."
The guidance notes that the risk of infection for vaccinated individuals is minimal. Likewise, it notes that the risk of transmission by vaccinated individuals to others is also reduced. The guidance applies to both indoor and outdoor settings. There are some caveats:
- The guidance does not apply to fully vaccinated individuals who are immunocompromised;
- Masks are still required for travel on buses, trains, planes, and public transportation; and
- Employers in the healthcare industry may have alternative standards related to mask use, and the CDC has separate guidance for healthcare personnel. (Click here to read)
While this is welcomed news, deciding whether to continue requiring masks in your business or workplace may be tricky. The CDC notes that businesses may continue to issue their own guidance with respect to wearing masks, and businesses always have an obligation under the Occupational Health and Safety Act (OSHA) to keep the workplace free of known health and safety hazards. Thus, employers should continue to consider the potential risks to their employees, clients, customers and guests when determining whether to continue a mask policy.
What this looks like for each employer will vary based on individual circumstances, but we encourage you to consider the following as you make that decision:
- The Equal Employment Opportunity Commission (EEOC) has issued guidance regarding what employers may ask employees regarding vaccinations. (Click here to read) Employers may ask employees a simple yes or no question about whether they have been vaccinated. The EEOC warns against asking any follow up questions — for example, why an employee has not been vaccinated — because such questions could elicit information about employee medical conditions that would trigger employer obligations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. For purposes of gauging whether or not to maintain a mask mandate in your workplace, a simple "yes" or "no" headcount from employees should suffice.
- If you ask for proof of vaccination, you should ask for documentation of the date(s) of administration and instruct employees not to provide any medical or family history information. Any information you receive from employees regarding their vaccination status should be treated as a confidential medical record.
- You should consider the extent to which employees interact with customers, clients, vendors, and others, as there is no way to determine the extent to which these people have been vaccinated. Exposure to non-vaccinated individuals — or individuals whose vaccination status you cannot verify — is relevant in determining the potential risk to your employees.
- If not all of your employees are vaccinated, refer to CDC and OSHA guidance to consider what other measures you could take to mitigate the spread of COVID-19 in the workplace. These include the measures many employers have been taking for over a year, including social distancing, rotating employee schedules, reducing customer capacity and enhanced cleaning protocols. Remember, not taking any action to reduce the risk of possible spread of COVID-19 could have legal ramifications under OSHA. Likewise, the Arkansas Court of Appeals recently ruled that quitting a job where the employer failed to undertake COVID-related precautions was not unreasonable. Thus, employees may be entitled to unemployment benefits if they quit because of the risk of exposure to COVID-19 at the workplace. Keener v. Dir., Dep't of Workforce Servs., 2021 Ark. App. 88 (2021).
- We have previously discussed whether employers should mandate vaccination for employees, and the potential implications of offering incentives to employees who voluntarily get vaccinated. (Click here to read) If you consider mandating the vaccine or offering incentives in light of the CDC’s updated guidance on masks, we advise you consider all potential ramifications of those decisions, including their impact on employees’ regular rates and on ERISA-covered wellness programs.
- If you decide not to mandate masks in your workplace, you should remind employees that they may still be required to wear a mask when off-site pursuant to city or local mask mandates and during any business-related travel.
- Likewise, if employees work off-site with customers, clients, or vendors, they should be instructed to follow the policies or protocols in place at those sites. Thus, employees should keep a mask with them during work hours to comply with any off-site requirements.
- If an employee raises a medical condition, disability, or religious objection related to a mask requirement, you should engage in an interactive process with the employee to determine whether you can reasonably accommodate his request. All of the factors we have discussed — the percentage of employees who are vaccinated, interaction with the public, and other COVID-19 protocols — are all relevant to determining whether the requested accommodation is reasonable under the circumstances.
You may encounter push back from employees regardless of what you decide. Some employees may feel there is no need to wear a mask in light of the CDC’s revised guidance. Conversely, immunocompromised employees may ask that you keep a mask requirement in place to protect their health. Remember, the CDC guidance specifically states that employers may have their own standard. The Governor also stated that businesses and employers may continue to enforce mask mandates in their workplaces when he lifted the statewide mask mandate. (Click here to read)
In short, the CDC’s guidance should not be read in a vacuum. Employers are in the best position to evaluate the needs of their business and the potential risks to their employees, vendors, and customers. We will continue to monitor guidance and will provide further updates if OSHA or any other agency updates its guidance in light of the new CDC standards.
Allison Pearson Rhodes is an associate in Friday Firm's Labor and Employment Practice Group. Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel.