No-Mask Vax FAQs

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Constangy, Brooks, Smith & Prophete, LLP

Can employers breathe easy now?

Last Saturday, I went to the supermarket and did my weekly grocery shopping without a mask.

It was glorious! And completely legal!

But employers may not be as elated as I am, now that the standards have suddenly become more loosey-goosey. Here are some FAQs to help you sort it all out.

What's the word on masks and COVID-19 vaccinations?

On May 13, the Centers for Disease Control and Prevention declared that masking in most indoor settings was no longer necessary for individuals who were fully vaccinated against COVID-19. Then, on May 17, the federal Occupational Safety and Health Administration essentially took the same position in the employment context, at least for the time being. (OSHA has promised to issue more guidance in the near future, so it is possible that its position will change.)

After the CDC update, a number of states -- including my state of North Carolina -- ended their indoor mask mandates for the fully vaccinated, with limited exceptions.

Which is how I got to buy my broccoli, local blueberries (now in season!), and Clorox wipes (now back in stock!) mask-free on Saturday.

via GIPHY

All right, enough about you and your mask-free Saturday. What are the limited exceptions? In other words, in what indoor settings does the CDC still recommend masks?

Employees and patrons should still wear masks on public transportation, in correctional or detention facilities, or in homeless shelters. They should also comply with any state, local, tribal, and territorial rules that are more strict. And businesses can make their own stricter rules and require employees and customers to comply.

Also, different rules apply to health care employers.

How is an employer supposed to know which employees have been vaccinated and which have not?

This may not be too difficult. The Equal Employment Opportunity Commission issued guidance last December saying that it was legal for employers (1) to require employees to be vaccinated (with limited exceptions) and (2) to ask employees whether they have been vaccinated, or even to ask for proof of vaccination.

Proof of vaccination could be a receipt from a doctor's office or pharmacy, a note from a health care provider or health department, or a vaccination card. The only caution here is that the documentation should contain no employee health information apart from the fact that the employee got the vaccine. Otherwise, the employer could be in violation of the Americans with Disabilities Act.

"Here. May I please take off this mask now?"

Are there situations in which employers cannot require employees to be vaccinated?

Yes. The general rule is the employers may legally require employees to be vaccinated. But if an employee has a disability that precludes vaccination (for example, the employee is immunocompromised) or if vaccination would violate an employee's sincerely held religious beliefs, the employer would have to at least try to make reasonable accommodations.

Although the EEOC guidance doesn't specifically address it, it's also a good idea for employers to try to make reasonable accommodations for employees who do not want to be vaccinated because they are pregnant.

Reasonable accommodations could include letting the unvaccinated employee work from home, or requiring the unvaccinated employee to continue to wear a mask, social distance, and take all the other old COVID precautions in the workplace.

(I call this "livin' like it's 2020.")

What about an employee who doesn't want to get the vaccine out of a sincerely held fear that Bill Gates will implant a microchip in their blood?

This belief -- and many other objections to getting the vaccine -- is not based on a disability, religious belief, or pregnancy, so it is not legally protected. Employers can accommodate employees with "non-protected" objections to vaccination if they want, but they're not required to do so.

We don't want to mandate vaccinations because of all the employee relations problems that could cause, but we would like to encourage employees to be vaccinated. We are thinking about paying a $100 bonus to every employee who is vaccinated. Would that be legal?

It might be, but we don't know for sure. Because it's legal to mandate vaccinations, it should be fine to offer incentives. However, in other contexts, the EEOC and some courts have said that incentives that are very generous (or penalties that are very severe) may be too coercive.

The EEOC has said it will be issuing guidance on vaccine incentives, but it has not done so yet. It seems to me that a one-time bonus of $100 per employee would not be enough to be considered coercive, but, yeah, well, ya know, that's just, like, uh, my opinion, man.

While we wait to hear from the EEOC on vaccination incentives, you may want to consider letting the CDC's new mask guidance work for you. In other words, let the people who have been vaccinated ditch the masks, and require the unvaccinated people to continue wearing masks. If that isn't an incentive for employees to get vaccinated, then I don't know what is. And, at the same time, you're complying with CDC and OSHA guidance, reasonably accommodating your employees who have legally protected objections, and helping to keep everyone safe. You can't lose!

Everything you've talked about is based on federal law. So, that means it applies everywhere in the United States, right?

Well, not necessarily. As already noted, employers should also make sure that whatever they do is in compliance with more stringent requirements that may be issued by state, local, tribal, and territorial governments.

Especially noteworthy is that state OSHAs can impose more stringent requirements on employers than federal OSHA. And governors can leave their prior orders in place that require people in those states to wear masks. But even California is dropping its mask mandate for fully vaccinated individuals effective June 15, and Michigan will drop its mandate for everyone -- vaccinated or not -- on July 1. California and Michigan have not been very "libertarian" on the mask issue, so their recent actions seem to indicate a general trend toward unmasking.

Effective this past Monday, we told employees that those who had been fully vaccinated did not need to wear masks to work. The unvaccinated employees are now very easy to identify. (They're the ones who are still wearing masks.) We've had some instances of vaccinated employees telling the unvaccinated employees that they are "idiots," and also asking and speculating about why they haven't been vaccinated yet. I'm flipping out because some of the people doing this are supervisors! Could our company get in trouble under the ADA or Title VII if the employee didn't get vaccinated because of a disability, religious belief, or pregnancy?

Yep, especially if the supervisor is doing the harassing, or knows it's going on and doesn't stop it. Employers should issue a clear communication to all employees to mind their own business. Calling co-workers names, grilling them about the reasons they haven't been vaccinated, and gossiping about why they haven't been vaccinated should result in disciplinary action, up to and including termination of employment. As long as the employer is following applicable laws and guidance, and the unvaccinated employees are following the rules (wearing masks, social distancing, etc.), unvaccinated employees should be left in peace. Especially by their supervisors, who are legally "the company."

(On the other hand, if an employee with health concerns asks to be moved away from a co-worker who has not been vaccinated, the employer should try to accommodate.)

Here's a strange situation. We have some fully vaccinated employees who are still afraid of getting COVID at work, so they're asking to keep working from home, and if they have to come to the office, they're masking up. What should we do?

This is more an employee relations issue than a legal issue. If your scared employees can work from home, let 'em. If they can't, or if you are ready to end telecommuting, then you'll have to find out whether they are willing to come in and continue to "live like it's 2020" and observe the old safety precautions. If they are, then let 'em return. If they want to keep wearing masks even though they don't need them, let 'em. It's their business, no one else's.

"To each her own! Buh-bye, mask!"

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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