The Centers for Disease Control and Prevention’s (CDC) announcement that people fully vaccinated against COVID-19 can shed their masks in many settings, including indoors, no doubt came as welcome news to mask-weary workers, but employers are warned not to relax rules too quickly.
For one thing, the CDC announcement applies only to fully vaccinated people. Plus, the CDC’s announcement doesn’t change guidance from the Occupational Safety and Health Administration (OSHA). Nor does it change state and local regulations.
On May 13, the CDC updated its guidance to say that fully vaccinated people can resume activities without wearing a mask or physically distancing except where required by federal, state, local, tribal, or territorial laws, rules, and regulations as well as rules of local business and workplaces.
The CDC says people should still wear face coverings in healthcare facilities, on planes and other public transit, and in settings such as prisons and homeless shelters. A few days after the mask announcement, CDC Director Dr. Rochelle Walensky clarified the new guidelines don’t mean all vaccinated people should shed their masks. For example, people with compromised immune systems and other health conditions should consult their physicians.
Walensky also said people should take into account that different communities across the country have different vaccination rates and COVID-19 case rates, and those factors should be considered when deciding whether to continue wearing masks.
Effect on Employers
Employers shouldn’t relax their rules too quickly, attorneys who advise employers say.
Jonathan R. Mook, an attorney with DiMuroGinsberg P.C. in Alexandria, Virginia, reminds employers the CDC guidance doesn’t change any laws or regulations or guidance from OSHA.
The latest OSHA guidance, issued on January 29, 2021, instructs employers not to distinguish between workers who are vaccinated and those who are not. “Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person,” the guidance states.
Mook says the OSHA guidance may change soon based on the CDC’s new guidance, but until workplace-related mandates change, employers need to follow the rules in force. He also points out that state and local mandates related to masks are changing fast, but many are still in existence.
“As long as they are applicable to employers, employers need to follow the existing mandates of state and local authorities,” Mook says. Employers can’t ignore mandates just because they may seem inconsistent with the new CDC guidance.
Mook says employers need to remember that a state or local government’s general loosening of restrictions may not change workplace restrictions. For example, in his state, Virginia, the governor plans to lift many general restrictions by the middle of June. But the Virginia Occupational Safety and Health Administration’s COVID standards are set to remain in place until at least the end of June and then be reassessed.
Cathleen Yonahara, an attorney with Freeland Cooper & Foreman LLP in San Francisco, also cautions employers to pay attention to state and local guidance. For example, in her state, the California Department of Public Health and the Cal/OSHA COVID-19 Emergency Temporary Standards require employers to ensure workers are provided and properly wear face coverings regardless of vaccination status.
‘Healthy Skepticism’
Leigh Anne Ciccarelli, an attorney with Weiss Brown in Scottsdale, Arizona, says “some healthy skepticism is required” if employers are considering relaxing their own mask policies. While most employees would likely be truthful about their vaccination status, some who have strong objections to masks may be looking for an excuse to no longer wear them.
Ciccarelli says if employers decide to stop requiring vaccinated employees to wear masks, it may make sense to ask employees to submit proof of vaccination “to be sure employees aren’t skirting their obligations by simply claiming to be vaccinated.” She points out that the Equal Employment Opportunity Commission (EEOC) says employers can require proof of vaccination with some exceptions and limitations.
The EEOC has said employers can require employees to be vaccinated with certain exceptions based on the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
Requiring vaccination doesn’t constitute a medical examination for ADA purposes, the EEOC says, but other vaccination-related questions may implicate the ADA’s provisions on disability-related inquiries. Also, Title VII ensures that employees may be excused from mandatory vaccination policies if their sincerely held religious belief or practice prohibits vaccination.
Mook says asking employees if they are vaccinated is tricky since current mandates don’t make a distinction between vaccinated and unvaccinated employees. He also points out some jurisdictions are at least discussing prohibiting employers from asking about vaccine status.
Ciccarelli says her state, Arizona, is one that has proposed such legislation, and she expects it will pass at some point. “This will certainly add a wrinkle to things.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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