“Masks Off” - Now What For Employers?

Smith Anderson

Smith Anderson

On May 13, 2021, the Centers for Disease Control and Prevention (“CDC”) announced new guidance stating that masks and physical distancing were no longer necessary for fully vaccinated individuals[1] in most settings.[2]  

The Occupational Safety and Health Administration (“OSHA”) appeared to follow suit a few days later, pointing interested parties to the new CDC guidance and stating it was reviewing the guidance and would be updating the information on its website accordingly.  

How will employers react to this new reality, and how should they address the issues posed by having both vaccinated and unvaccinated employees in the workplace?  

As a threshold matter, employers should take note that the updated CDC guidance does not preempt state and/or local government rules requiring face masks or distancing - those will still apply in those jurisdictions. But in states and cities that elect to follow the CDC’s lead on these issues, the decisions may prove a little more challenging for employers.   

Some employers may be reluctant to immediately waive mask-wearing and distancing requirements because many of their employees remain unvaccinated. Others may fear employee anxiety over such a sudden change in workplace behavior. Still others may choose to wait and see if the change in CDC guidance results in COVID case spikes before they become comfortable fully returning to pre-pandemic routines. Inevitably, questions about liability will also linger in the minds of some employers.   

OSHA - at the direction of President Biden - had previously proposed certain temporary rules aimed at protecting workers from COVID in the workplace. These are currently under review by the White House, and some employers may elect to wait and see these rules before making any significant changes in workplace policy.  

But news reports suggest that any new COVID rules issued by OSHA will likely resemble various analogous state rules and will simply codify certain existing agency guidance into formal rules. These include mandatory written COVID Prevention Plans; employee training on COVID prevention; and notification, reporting and recordkeeping requirements.  

It is possible that new OSHA rules could require employers to provide employees with face masks; some states already impose this requirement. However, it is unlikely that any such rules will be inconsistent with the new CDC guidance. To the extent new rules address masks at all, they would likely be directed at unvaccinated employees. 

Which prompts the question that will vex employers going forward: How to address the question of vaccinated and unvaccinated employees working in the same workplace? Employers will have different options to consider when addressing this question.  

First, with limited exceptions, employers can require employees to be vaccinated against COVID as a condition of employment. Delta Air Lines, for example, recently announced that it would require vaccinations for all new hires. Moreover, some polling suggests that a majority of Americans want their employers to require vaccinations before being forced to work alongside unvaccinated colleagues (the percentage varies by industry, with support for mandatory vaccinations highest in office settings). However, other polling has indicated that many employees would quit their jobs if required to receive the vaccine. In any event, mandatory vaccination would require employers to consider and provide reasonable accommodations to individuals with physical or mental impairments for which vaccination is contraindicated, as well as to individuals for whom vaccination conflicts with their religious beliefs absent a showing of undue hardship.[3] 

Second, although employers are not required to permit remote work, employers could allow unvaccinated employees to continue remote work, either for a specified period or indefinitely. Obviously, the nature of a given employee’s work may impact an employer’s decision on the viability of remote work. 

Third, some employers might elect to reconfigure their workplaces to allow for unvaccinated employees to work separate and apart from vaccinated employees, or to implement (or retain) engineering methods of risk reduction, such as plexiglass partitions, etc. These methods may help alleviate tensions that are likely to arise between vaccinated and unvaccinated colleagues. 

Finally, employers could require continued mask wearing and social distancing, at least for some additional period to allow for more employees to get vaccinated. This would also allow for time to gauge infection levels at other workplaces that lift mask and distancing requirements and to educate employees on the low risk of transmission among vaccinated individuals. 

This last option naturally raises the very real possibility of vaccinated employee frustration, and many employers who go this route will likely do so only for limited periods. However, it might prove the most attractive to many employers. First, any sudden change in safety-related behavior in the workplace will likely generate employee anxiety. While the vaccines currently authorized in the United States have impressive efficacy rates, they do not offer absolute guarantees against infection or transmission. There is also the question of vaccine efficacy against virus variants that have been identified in certain countries, including the United States. It has also been over one full year since masks and distancing became mandatory in many places and, for many, feeling comfortable again around others will not happen overnight. 

Ultimately, the question of whether or not to lift or modify existing mask and distancing policies will be a business decision for each employer, based on its own employee base and set of circumstances. For North Carolina employers confused by the most recent Executive Order from Gov. Cooper (which lifted indoor mask and distancing requirements but did not clearly distinguish between vaccinated and unvaccinated individuals), it is best to follow the CDC’s lead as to unvaccinated employees: keep them masked and distanced from others. Although the Governor’s Executive Order will protect you from the N.C. Department of Health and Human Services, as well as the N.C. Department of Justice, it has no bearing on OSHA and enforcement under its rules. 

That said, the new CDC guidance provides employers with newfound flexibility and represents a step towards a return to pre-pandemic life.  

[1] Per the guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen).  “Unvaccinated people” refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

[2] The guidance does not apply to healthcare settings, and further provides that fully vaccinated people should also continue to wear a well-fitted mask in correctional facilities and homeless shelters. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html#anchor_1619526673330

[3]These requirements are imposed by the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (“Title VII”).

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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