Obermayer Rebmann Maxwell & Hippel LLP

On May 13, 2021, the Center for Disease Control (“CDC”) published guidance indicating that fully vaccinated individuals do not need to wear a mask or physically distance in certain indoor and outdoor environments, except where otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. 

The CDC guidance applies to “fully vaccinated” individuals, meaning that two weeks have passed since the person has received either: (1) a second dose of a two-dose series, or (2) one dose of a single dose series.  Now, after over a year of COVID-19 restrictions and with the number of vaccinations increasing each day, more and more employers are mandating a return to in-person work. This brings up an important question: Should employers require all employees to wear masks in the workplace, or can they ease these measures for fully vaccinated employees? 

Throughout the pandemic, employers have tailored their internal policies to mirror CDC guidance. However, CDC guidance is not legally binding, and governments or regulatory bodies may deviate from CDC guidance in certain respects.  Thus, before employers change any COVID-related policies, they must look to whether the public health officials in their state have chosen to follow the CDC guidance or impose more stringent measures.  Several states are still reviewing the CDC guidance, whereas other states such as Pennsylvania, Connecticut, Illinois, Kentucky, Nevada, Oregon, and Washington state, have announced they will change their rules to follow the CDC’s guidance.

While the state-level trend of following the CDC’s latest guidance is undoubtedly a positive sign that the workplace is going “back to normal,” employers must also keep federal regulators in mind, as the Occupational Safety and Health Administration (“OSHA”) has not yet weighed in on workplace safety standards regarding masks. This may further affect an employer’s ability to loosen restrictions at the workplace.  OSHA’s most recent guidance is that employers should not treat fully vaccinated workers any differently than masked (unvaccinated workers).

If employers choose to loosen restrictions, enforcing two sets of rules for vaccinated and unvaccinated employees could be a recipe for disaster.  Employers may wish to rely on an “honor system” with respect to their employees’ vaccination status.  However, employers must be ready to address potential issues that go with a mask-free workforce, such as non-compliance by their employees, and employees’ safety concerns over the practice.  Employers must also recognize that some employees, such as those in advanced age or those with compromised immune systems may choose to remain masked, which could create tension among coworkers. 

The recent CDC guidance does not impact the current guidance issued by the U.S. Equal Employment Opportunity Commission (“EEOC”) in December regarding COVID-19 vaccinations.  The EEOC’s guidance clarifies that employers can ask employees whether they have been vaccinated without running afoul of the Americans with Disabilities Act (“ADA”).  However, employers should avoid asking employees why they are or are not vaccinated, or why or why not they are choosing to wear a mask. Such inquiries could be viewed as soliciting protected medical information or disability status in violation of the ADA. 

Employers can always choose to exceed the minimum government safety mandates, and this may be the best practice for the time being.  Employers who lease their office space may have their decision made for them by their landlord or property management company, who may conservatively choose to keep mask mandates in place across the board.

While the CDC’s recent guidance shows continued progress in the fight against COVID-19, it, unfortunately, places employers in a difficult situation, both from a compliance and employee-relations perspective.  HR Legalist will continue to monitor this evolving situation.  In the meantime, we urge our readers to consider the unique nature of their workplace and consult with trusted counsel in order to determine the best course of action. 

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