Pragmatic Employer Considerations In Response To New CDC, OSHA And New York State Guidance On Nose And Mouth Coverings

Tarter Krinsky & Drogin LLP
Earlier this month, the CDC changed its guidance regarding when fully vaccinated individuals could safely and appropriately be indoors and outdoors without nose and mouth coverings. More recently, OSHA adopted the CDC’s guidance, impliedly extending these relaxed measures to workplaces. This guidance is now aligned with Governor Cuomo’s announcement and New York City’s goal of achieving a full reopening on July 1. Employers can adopt and implement the new guidance in the workplace, subject to continuing to monitor for changes (expansive and narrowing) that may occur in the future, and consistent with their continued compliance with federal, state, and local employment laws.
Analysis and Interim Protocols
Timing: Employers can begin to implement revisions to workplace rules immediately. Employers whose workforces have yet to be required to return may wish to wait until the formal return date nears, to benefit from any subsequent guidance that emerges. Some employers may also wish to make incremental changes rather than wholesale changes to protocols that have been in place for months.
Participation: On-site work without nose and mouth covering should be optional but permitted only for those employees who: (i) confirm in writing that they voluntarily wish to work without a nose and mouth covering; (ii) agree to follow the employer’s policies and protocols relating to on-site work, and (iii) present proof of full vaccination (either by Excelsior Pass, vaccination card, or screening procedure).
Proof of vaccination: Only those employees who have presented proof of vaccination (including any post-vaccination waiting periods) may be permitted to work on-site without a nose and mouth covering. Employees who are unvaccinated should continue to maintain such coverings in the workplace consistent with current procedures. Employers may also wish to consider informing employees what percentage of the workforce is fully vaccinated, especially if the number is high. This may allay concerns of those who are unvaccinated.
Unvaccinated employees: Employers are permitted to require employees to present proof of vaccination before allowing them to return to on-site work locations. Those employees who present medical or sincerely held religious beliefs as reasons for remaining unvaccinated must be evaluated separately, and employers will be required to reasonably accommodate such employees. Employees who simply choose not to obtain a vaccination, but are otherwise able to do so, need not be accommodated.
Harassment and discrimination concerns: Employers should recognize that employees on-site who are not vaccinated will fall under one of three categories: (i) those who cannot receive the vaccination for medical reasons; (ii) those who are unvaccinated due to a sincerely held religious belief; and (iii) those who choose to remain unvaccinated.
Categories (i) and (ii) are protected characteristics under federal, state, and local anti-discrimination laws. Harassment and discrimination policy reminders should be reissued, alerting employees that unvaccinated on-site employees will not be harassed, disciplined, or suffer any other adverse employment action by virtue of the fact they are not vaccinated. Employees should be reminded not to inquire or probe as to why an individual is not vaccinated.
Restrooms: The size, number, and location of restrooms may present special challenges for employers. Policies regarding the number of occupants and the requirement of nose and mouth covering when in a restroom should be addressed based on the specific circumstances in the workplace.
Shared offices or spaces: Like restrooms, care should be given to employees who are asked to work in a shared office or workspace. Our recommendation is that employees should not be compelled to share space unless necessary. In such circumstances, those employees should be required to wear nose and mouth coverings unless all agree not to, and preferences should be shared only with human resources or some other member of management to preserve confidentiality. In other words, where several employees work in tight proximity, those consenting need not be made aware of those who do not.
Common areas: Employers should consider whether nose and mouth coverings should continue to be required in common areas such as lobbies, hallways, break rooms, kitchens, and conference rooms. Like above, the situation should be analyzed based on the size of the spaces involved, the amount of traffic in the location, and the number or percentage of employees who are fully vaccinated. For example, outcomes may differ in situations where one company has 3 out of 10 unvaccinated employees, contrasted with one who has 3 out of 100 unvaccinated employees.
Prescreening: No guidance has suggested that employers may discontinue the pre-arrival (or on-arrival) screening. We anticipate that this still-current requirement will be modified to permit the initial question to be “have you been fully vaccinated more than X days ago and have no current COVID-19 symptoms.” (X being the then-current guidance from the CDC). An affirmative answer would permit the employee to enter the workplace without the need to answer other questions.
Guests: Employers whose businesses are not public facing should examine when and how to ease restrictions for on-site guests. Simply as a practical matter, on-site guest visits that can be limited should be limited, if for no reason other than to minimize exposure to all employees.
Barriers and Social Distancing: Many businesses have erected plexiglass dividers or barriers to shield employees from airborne particles. The newest guidance does not address whether they can or should be removed. From our perspective, it is more advisable to retain them in place for now, until such time as closer physical contact resumes its pre-pandemic norms, especially if employees on the opposite side of the barrier are without nose and mouth coverings.
The guidance did relax social distancing restrictions however, we are not recommending that business alter their rules out of consideration for employees who may be unvaccinated, or those who simply prefer to maintain a six-foot social distance until cultural norms are reestablished or resume.
Hygiene: Employers should continue to maintain signage pertaining to COVID safety protocols, as well as to provide ample hand sanitizing stations, nose and mouth coverings for employees and guests.
Stay tuned: Guidance from federal, state, and local governments and agencies frequently changes as do best practices concerning return to on-site work. Employers should remain vigilant on monitoring announcements and seek legal guidance for clarification on changes to then-existing procedures.

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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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