Communications from the CDC: To Mask or Unmask, that is the Question

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Communications from the CDC during the coronavirus pandemic have sometimes been difficult to understand or apply in practical circumstances, and there is no Rosetta Stone to decipher their meaning. Additionally, CDC recommendations seem to change rapidly and frequently conflict with recommendations from state governments or others. Most recently, the CDC issued guidance lessening safety restrictions for those who have been vaccinated against COVID-19. A number of articles, as well as statements from the CDC itself, appear to indicate that these loosened safety restrictions for vaccinated individuals are at least in part an attempt to encourage more vaccination as the United States has hit a vaccination plateau. Note the CDC guidelines and changed recommendations are not currently represented within the OSHA rules and may contrast with currently existing federal orders regarding masking of federal employees and on federal property. Different requirements may also exist for specific industries that are heavily regulated, such as healthcare. The longevity of guidance of this type will also depend very much on whether another COVID spike occurs and on COVID transmission rates in your county or state. Just like everything else we’ve done for over a year in relationship to COVID, it’s never set in stone. 

Employee vaccination status

We didn’t mandate vaccines, so how do we know if employees are vaccinated?

Employers can inquire into the vaccination status of their employees if they believe there is a business necessity. Employers loosening masking or other safety regulations may be able to justify the business necessity component relating to employee health information. Do note - if you collect this information, it should be kept in an employee health file and is subject to the standard confidentially requirements of employee health information. Another option is to simply use the honor system and assume that employees will follow the rules. Make sure to publicize the rules.

Using the honor system seems a little terrifying.

The concern for employers will be that employees simply choose not to mask regardless of vaccination status. The honor system relies on employees to be honest. You have to assess your employee culture, your corporate culture, and a variety of other issues you have been dealing with over the COVID pandemic. 

One way to limit liability is to be extremely clear on your policies - employees who have not been vaccinated must continue to mask, observe social distancing guidelines, and take other health precautions. What sometimes happens when liability crops up is that employees claim that they didn’t understand the policy, including whether or not it applied to them. You need to be extremely clear, post the policy and reiterate it in multiple communications to your employees. A single instance is not enough; continuous microlearning typically will assist in making sure that employees would have difficulty claiming they didn’t understand the policy.

What happens when another employee comes to me and says, “I know Bob isn’t vaccinated and he’s unmasking?”

This would be treated like any other health and safety issue. If you have a policy where unvaccinated individuals are required to mask, and you receive a report that an employee is not meeting your safety rule, you would bring that person in to speak with them regarding whether they were in violation of the rule. This is the same process as if they weren’t harnessing for work from heights or weren’t doing LOTO or following any other safety protocol which you had mandated. This ultimately can become an OSHA issue and pursuant to OSHA you can inquire as to whether or not they were following your safety practice and protocols. 

You may find that many employees simply openly share their vaccination status. You see many people broadcasting their vaccination experience and status on social media platforms, and an Iowa retailer sells t-shirts that say “Vaccinated AF” which are proudly worn by a number of people. 

In-office safety

What about employees who are vaccinated but still want to mask?

It is very important that you create an environment where employees can continue to mask or exercise other safety protocols without fear of being made fun of or experiencing any form of retaliation. If employees are vaccinated but remain uncomfortable due to COVID-19 or other concerns, masking and travel in separate vehicles should be allowed, and requests for no out-of-state or offsite travel should be assessed to determine the ADA/ADAAA applicability.

Food is a big part of our work environment. Can we bring it back? 

Well, we are Iowans after all. Consumers of Jell-O, peanut butter, and only slightly behind Minnesotans in the consumption of Tater Tot hot dishes. However, you do want to continue to be careful about shared food. Shared food is a risk at the best of times, and you may want to limit food in the office to things that are individually packaged or certainly where utensils, plates, and other items are not shared. Buffets and potlucks likely remain risky.

I want to resume my weekly lunches with my team. What about restaurants?

Certainly, restaurants and other similar businesses have been opening up, and each restaurant may have its own rules and requirements regarding masking and similar safety protocols. With summer coming, patios will remain available and the consistent recommendation has been that outdoor activities are slightly safer than indoor activities when it comes to COVID-19. But like anything else, if an employee is uncomfortable participating, it is important that you do not make these exclusive events where work is assigned or give others primacy because they are willing to attend. This is also true for those who continue with a remote work or hybrid work model.

What about customers?

If you have a forward-facing business where you interact with customers, it will be a business determination as to whether or not customers may continue to enter and/or be unmasked. If you choose to allow generalized unmasking you may want to continue keeping the various plexiglass barriers and social distancing to mitigate issues that may occur.

What about employees who have underlying conditions?

This continues to be an issue you need to assess on an individual basis. If someone in the workplace is in fragile health, it may be necessary to work with that person and potentially their team to determine appropriate safety guidelines and measures. Remember, any accommodation discussion is individualized and requires an interactive process. 

Big picture 

Every person and every business are different. Some rush headlong over the cliff ready to go in an instant, sometimes unaware of the potentially sharp rocks and sharks below. Others tiptoe into the water and move forward more cautiously. You need to assess the type of work that your company does, various risk factors, whether you are in a high-risk industry (if you don’t know, check the OSHA guidelines), and your corporate culture to properly assess risk moving forward. Remember that just because you can doesn’t mean you should and this is a process that requires some thought and consideration relating to your specific business.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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