A few weeks ago, the most common question that employers were asking was whether they could (or should) require employees to get vaccinated. Most of my employment colleagues agreed that employers could mandate vaccines as long as they accommodate employees with medical and religious objections. However, given that the issue was still politically fraught, many employers had decided that it might be best to simply encourage employees to be vaccinated rather than mandate it.
Quite frankly, most of us were surprised on May 13, 2021, when the Centers for Disease Control and Prevention (“CDC”) announced new guidance that fully vaccinated people need not wear masks in most situations. Since that announcement, the most common question being asked by our clients is whether they can (or should) stop requiring vaccinated employees to wear masks.
Given that the Occupational Safety and Health Administration (“OSHA”) had counseled employers to follow the most current CDC guidance, employers should be able to relax their mask requirements for vaccinated employees; provided there are no conflicting state or local requirements. On the other hand, OSHA has not given the green light for unvaccinated employees to go maskless, unless they are working alone in a closed office and unlikely to come into close contact with others.
This raises the question of whether employers should treat vaccinated employees differently from unvaccinated ones. If vaccinated employees are allowed to go maskless while unvaccinated employees are not, could unvaccinated employees complain that they are being discriminated against? Most agree that unvaccinated employees would not have a viable claim of discrimination so long as they are not treated differently in any other way. In other words, if unvaccinated employees have the same opportunities in the workplace as their maskless vaccinated colleagues, it would be difficult to claim discrimination. Of course, an employer should also make sure that unvaccinated employees do not feel like they are being targeted or shamed for their choice, since that could support a claim of harassment. For example, supervisors and coworkers should not talk about who might not be vaccinated. One way to avoid that from happening is to make it clear that vaccinated employees are free to continue wearing a mask if they feel more comfortable doing so. Hence, if an employee is wearing a mask, it does not necessarily mean that they have not been vaccinated.
Finally, employers will need to decide how they will monitor whether their maskless employees are actually vaccinated. Should employers require employees to provide proof of their vaccination or should employees who want to shed their masks be required to sign a declaration stating that they have been vaccinated? Or employers could simply issue a policy stating that any employee who chooses not to wear a mask is certifying that they are fully vaccinated. In short, you could rely on an honor system, much like employers do when an employee claims someone is a spouse so that person can receive health insurance benefits.
At the end of the day, the risks of treating unvaccinated employees differently than vaccinated may be outweighed by the fact that more unvaccinated employees may be encouraged to get vaccinated so that they too can shed their masks, making the workplace safer not only for them, but for everyone else.
