Updated COVID-19 Guidance: Relaxation of Masks and Other Mandates

Stroock & Stroock & Lavan LLP

Last week, the Centers for Disease Control and Prevention (CDC) updated its guidelines that people who are fully vaccinated (two weeks after they received either the second dose of a two-dose vaccine or a single-dose vaccine) do not need to wear a mask indoors or outdoors or maintain physical distancing other than in pre-k to 12 schools, health care settings, prisons, and homeless shelters. All travelers are required to wear a mask on all planes, buses, trains, and other forms of public transportation and in transportation hubs, such as airports and stations.  The CDC’s guidance is subject to more restrictive federal, state, and local rules and regulations, including local business and workplace guidelines.

On Monday, May 17, 2021, the Occupational Safety & Health Administration (OSHA) posted on its website that it is reviewing the recent CDC guidelines and will update its materials accordingly. However, until those updates are complete, OSHA referred employers to the CDC’s guidance for information on measures appropriate to protect fully vaccinated workers.

New York

Also, on May 17, 2021, New York’s Governor Andrew Cuomo announced that New York State will revise its reopening guidelines to take effect on Wednesday, May 19, 2021. Therefore, effective May 19, in most settings, fully vaccinated people will not be required to wear a mask. Unvaccinated individuals, under both CDC and state guidance, must wear masks in all public settings, including indoors. According to Governor Cuomo, those who are immunocompromised should continue to wear masks, even if fully vaccinated. The New York State Department of Health strongly recommends masks in indoor settings where vaccination status of individuals is unknown. Mask requirements by businesses must adhere to all applicable federal and state laws and regulations. This applies across commercial settings, including offices.

As Governor Cuomo previously announced, most business capacity limitations — which are currently based upon a percentage of maximum occupancy — will be removed on May 19. Businesses will only be limited by the space available for unvaccinated patrons or parties of patrons to maintain the required social distance of 6 feet. Businesses, however, may eliminate the 6 feet of required social distancing, and therefore increase capacity, if all “patrons” within the establishment — or a separate designated part of the establishment — present proof of full vaccination status. Proof of full vaccination status can be provided by patrons through paper form, digital application, or New York State's Excelsior Pass. For areas where vaccination status of individuals is unknown and for patrons who do not present proof of full vaccination status, the required social distance of 6 feet still applies. This updated physical distancing guidance appears to apply to office settings, including the requirement to continue to adhere to the 6 feet physical distancing rule unless everyone in the office — or a separate designated part of the office — presents proof of full vaccination status.

Business owners and employers may continue to enforce their more restrictive requirements. In this regard, Governor Cuomo asked everyone to be respectful of those who may still feel safest wearing their mask.

California

California announced on Monday, May 17, 2021 that effective June 15, 2021, fully vaccinated individuals may stop wearing masks in most indoor settings, consistent with the CDC guidance. California’s June 15 relaxation of the mask mandate for fully vaccinated people is consistent with some criticism by certain health experts who advocated a delay in the CDC’s new guidance. Further, California had proposed modifications to the Cal/OSHA Emergency Temporary Standard (ETS), which were anticipated to be adopted, likely by early June. However, on May 20, 2021, rather than adopt those revisions, Cal/OSHA asked that voting on the changes be held off to enable Cal/OSHA to present a new proposal with a target June 15 effective date.

Florida

A recent Executive Order removed all COVID-19 mandates/restrictions on individuals and businesses, specifically providing that this Executive Order eliminates and supersedes all COVID-19 emergency orders and ordinances issued by counties or municipalities. Business owners and employers, however, may continue their more restrictive requirements.

Under recent Florida legislation, a business entity operating in Florida may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business. This legislation does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government-issued guidance to protect public health. Moreover, the legislation is silent as to the permissibility of an employer requesting vaccination proof from its employees, and apparently does not prohibit employers from requiring disclosure of COVID-vaccination status from their own employees.

Washington, D.C.

On May 17, 2021, Mayor Muriel Bowser announced that Washington, D.C. revised its mask guidance consistent with new CDC guidelines. Wearing a mask will continue to be required on transportation, such as trains, buses, and taxis, and at transportation hubs like train stations and airports, as well as in childcare settings, schools, correctional facilities, and homeless shelters. Mayor Bowser also said businesses and employers can still require that people wear masks, so people should continue to carry masks with them.

EEOC Guidance

Significantly, the U.S. Equal Employment Opportunity Commission (EEOC) advises that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry, reasoning that there are many reasons — both disability-related and non-disability-related — that may explain why an employee has not been vaccinated. Requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent Americans with Disabilities Act (ADA) standard that such questions be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the EEOC suggests that employers may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

Going Forward

Some businesses have relaxed their mask mandate while others are taking a wait and see approach, including to see what, if any, additional guidance the CDC, OSHA, and applicable state and local authorities issue. Previously, states and cities had promulgated extensive guidance and some are wondering if there will be more detailed guidance in terms of implementation. Moreover, others are waiting for OSHA to update its guidance and/or for the CDC to issue specific guidance for the workplace.

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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