Unless you have been in a cave, you are aware that on May 13, 2021, the Centers for Disease Control and Prevention (CDC) announced that individuals who have been fully vaccinated for COVID-19 no longer need to wear a face covering in many settings. (CDC Guidance) Many of you shouted “HOORAY!” when you heard this news as you hoped it meant some relief from masks in your workplaces. Unfortunately, what complicates this issue is that the CDC’s announcement specifically excludes “federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” As you review your policies in light of this announcement, here are some things to consider with the “mask or no mask” issue.
So, the million-dollar question is: if you lift the mask requirement in your workplace for fully-vaccinated employees, what is the RISK with OSHA? Here are our thoughts:
i) It is unlikely OSHA will randomly audit workplaces regarding a mask policy;
ii) While a mandatory standard is pending, OSHA has power under the general duty clause to issue a citation;
iii) Employees who make good-faith safety complaints to an employer are protected from retaliation. If an employer terminates an employee for a complaint related to the mask issue, OSHA will likely find that to be retaliatory which could result in backpay, reinstatement or fines against the employer.
In sum, we can only hope that OSHA issues some guidance soon and we will let you know when this happens!!
In sum, we have clients who fall in every single one of the following categories:
i) have NEVER required masks for anyone;
ii) plan to require masks for everyone into the indefinite future;
iii) plan to wait until any existing local mandate or guidance is lifted, then lift mask requirement for everyone;
iv) same as iii, but plan to only lift mask requirement for vaccinated;
v) plan to immediately lift mask requirements for vaccinated only; and
vi) already made masks “voluntary” back in March when the Wisconsin state order was invalidated.
SO, what should you do? We cannot answer that in an e-alert—but if you want to talk through this issue, we have a team that will help you create a plan for YOUR organization.