Employers May Not Be Able To Scrap Masks Yet

The announcement from the CDC that fully vaccinated people no longer need to wear a mask or physically distance was a welcome relief for all Americans and a hopeful sign. The guidance did not overrule federal law, workplace guidance, local business restrictions, or state, local, or other similar regulations. If you an employer the following information is critical for you to understand.

For employers considering relaxing or eliminating your mask mandates and social distancing protocols for those who are fully vaccinated, there are at least seven considerations to take into account before proceeding:

1. Local laws and regulations may still require you to enforce such rules regardless of vaccines.
2. The federal Occupational Safety and Health Administration (OSHA) has not yet relaxed its COVID-19 standards for workplaces.
3. States with their own OSHA equivalents may also have different standards to consider.
4. If you choose to mandate the vaccine, there remains an outside risk of a lawsuit from someone hesitant to get inoculated.
5. If you do not mandate the vaccine, you would need to inquire about and probably track the vaccine status of your workers to determine whether someone is fully vaccinated, which could raise privacy and disability discrimination concerns.
6. Some of your workers may have legitimate medical or religious reasons for abstaining from the vaccine, requiring you to take their accommodation status into account.
7. Workers who are un-vaccinated and thus required to continue wearing masks and maintain social distancing could have a claim for retaliation if they are harassed or discriminated against.

Here is a seven-step blueprint if you want to eliminate mask mandates and social distancing rules at your workplace.

1. Get a Gauge on Your State and Local Regulations.
2. Understand the Risk You Face From OSHA
3. Understand Your State OSHA Plan Requirements
4. If You Mandate the Vaccine, Bear the (Slight) Risk of a Lawsuit
5. Tracking Vaccine Status Raises Privacy and Other Concerns
6. Offer Religious and Medical Accommodations
7. Protect Masked Workers from Mistreatment

What about guests and visitors? There is no easy answer at this time. Asking your guests for information about their vaccine status or proof of vaccinations is a risky proposition fraught with legal peril. You should coordinate with your legal counsel if you want to pursue such a course of action, but there are critical discrimination and privacy concerns to overcome.

For those employers that want to chart the most conservative course and maintain the status quo, there remains virtually no legal risk at this time. You could choose to sit and wait for more clarity to emerge from the EEOC, OSHA, and state and local authorities before implementing any changes.

The CDC announcement expressly states that employers and business can continue to maintain a mask mandate and social distancing policy. Based on CA, county and city laws and regulations maintaining masks may be a legal requirement as is having a Return-to-Work written policy.

If you need assistance with your Return- to-Work policy or guidance with COVID vaccinations, mask requirements, please reach out to JorgensenHR.

Thank you Nicole Kamm Fisher Phillips nkamm@fisherphillips.com for this great information.