The More Things Change . . .

This is the first in a series on key issues regarding the “Return to Office”. We started planning this series earlier this summer and, like many of our clients’ plans, it got delayed and kept evolving. We recognize that a significant number of employers have been back to work since Spring 2020 -- all of those frontline employees who have been providing essential and critical services. But even for those employers, many of their white collar workers and managers have been working from home for almost 18 months, along with the millions of other workers and professionals in numerous industries. Until recently, there was a general consensus around soft openings during the summer and the re-opening of offices after Labor Day. Then the new Delta Variant got worse, and the CDC changed its advice. 

This series will address our recommendations on mask requirements, vaccinations, remote work polices and hybrid workplaces, the many psychological issues employers and employees need to address, and other topics. And like the pandemic, we will try to deal with what seems to be a constant evolution in guidance, mandates and best practices in the continually changing landscape of COVID-19. As issues continue to develop, we will update this series.

So take a deep breath, hold for 10 seconds, then exhale. Repeat. We’ll get through this together.

Masks Off, Masks On

After new research came in on the Delta Variant, on July 28, 2020, the CDC changed its prior guidance and currently recommends that fully vaccinated individuals wear a mask in public indoor settings in geographic areas with substantial or high transmission rates. At this time, a large portion of the country is in a substantial or high transmission area.

Prior to this change in guidance, the CDC had declared that fully vaccinated individuals did not need to wear masks when indoors. Many employers and businesses quickly relaxed their in-office mask policies. Most vaccinated employees were anticipating that going without masks would be one of the perks when offices re-open. After the new CDC guidance, employers need to reconsider their masking policies. Many are choosing to follow CDC’s guidance, or being are required to do so by state or local governments. On August 13, 2021, OSHA updated its guidelines for employers to incorporate the new CDC guidance.

https://www.osha.gov/coronavirus/safework. While this guidance is not a mandatory rule (like the OSHA rule for health care entities), failure to follow OSHA guidance could be cited in other types of complaints.  

The reason for the change is something that can get lost in translation. The greatest risk of COVID-19 is to unvaccinated individuals, and they are still perceived as the greatest risk of transmitting COVID-19 to others. But the evidence relied upon by the CDC is that when a vaccinated person has a breakthrough infection, which could be asymptomatic, their viral load may be high, and thus they also pose a risk to others. Masks also help reduce the risk that a vaccinated person might contract the virus, and take it home to unvaccinated children or people at higher risk. When you combine these concerns with the still uncertain length of the efficacy of vaccinations, the prudent course of action is for employers to update their policies to match the CDC guidance if they are located in a substantial or high transmission area.

So what does that mean? It means requiring all individuals to wear a CDC compliant face covering while onsite. Cloth face masks should:

• Only cover the nose and mouth and fit snugly but comfortably against the side of the face;
• Be secured with ties or ear loops;
• Include multiple layers of fabric;
• Allow for breathing without restriction; and
• Must be clean when worn and must be laundered after every use.

It also means monitoring and understanding state and local requirements. There are now a number of states and localities where masks in indoor public spaces are mandatory during periods of substantial or high transmission. There are some states, including Iowa, Florida, Montana, Arizona, North Dakota and Arkansas, where the state government is banning localities from implementing mask mandates. This is a fast, evolving issue and many state legislatures are still in session, so new prohibitions across the country could be imminent.

Employers also need to decide whether to make their policies flexible, and only trigger mask requirements for vaccinated employees when levels in their area are substantial or high. This has some appeal, but could result in office mask requirements changing week-by-week. Adopting a uniform mask mandate in offices until the CDC advice changes is going to be a disincentive for employees to return to the office (when they have a choice).

As many employers and businesses know from experience, a mask mandate for all employees causes its own practical hurdles, including enforcement. Employers need to decide when masks can be removed. Is it just in private offices? With how many people? Should there be a “restaurant exception” when employees eat or drink together in a cafeteria or break room or company sponsored happy hours? The relative risk depends on many factors, including the level of vaccination in the office, transmission rates in that area, indoor or outdoor, ventilation, etc. If employers choose to ban all group events with eating and drinking, which is the cautious approach, this also is a deterrent to returning to the office. And wearing a mask all day is uncomfortable. Just talk to a frontline employee -- or anyone who has flown on a plane.

There has also been an uptick in requests for accommodations related to mask requirements, often by the same individuals seeking exemptions from vaccination mandates. Under federal law (ADA Title I and Title VII), employers are required to provide employees reasonable accommodations for disabilities and sincerely-held religious beliefs. Most employers should already have internal procedures for reviewing requests for accommodations.

What is somewhat unique to COVID-19 is an increased number of exemptions that are based upon philosophical or political reasons, clothed in medical or religious terms. We will provide further guidance on exemptions in our article on vaccinations. In cases of disability/medical requests, employers can require medical documentation establishing the disability and the need for the exemption (i.e., why the employee cannot wear a mask). Employers can require that the documentation specify the provision of the CDC guidance on when masks should not be worn. But as with all ADA requests, employers need to decide how strongly to challenge a doctor’s excuse. For accommodations for sincerely-held religious beliefs, the employer can require a statement by the employee (or other evidence if available ) of their sincerely-held religious belief, and consider factors such as whether this is a new belief, and has been held in the past to object to similar requirements. If the employer does grant an exemption request, it can impose other requirements, such a periodic testing for COVID-19, continue working from home or remain socially distanced in an isolated part of the office. The degree of “burden” for religious exemptions, including safety risks, are far lower than disability accommodations.

Businesses have similar rights to mandate masks for customers and visitors. Under ADA Title III and state public accommodations laws, the business must consider disability-related exemption requests, and state or local public accommodation laws may require consideration of religious requests. The same rules apply -- the ability to require documentation of the need for an accommodation. Even if there is a legitimate basis for a mask exemption, for health and safety reasons, the business can offer alternatives, such as providing services to the customer without permitting them inside the building, or visiting at other times, or doing business by video or telephone.

COVID-19-related guidance is constantly evolving. As employers begin returning individuals to work, they must continue to remain up to date on the most recent guidance and adapt accordingly. The return to work process will require flexibility as the guidance and laws change.