This piece was also published on Law360.com on May 18, 2021, and can be accessed here.
According to new guidance issued by the Centers for Disease Control and Prevention (CDC) on Thursday, May 13, individuals who are fully-vaccinated for COVID-19 are no longer required to wear a mask or practice social distancing in most indoor and outdoor settings. This includes attending indoor gatherings, shopping, dining at restaurants, and going to crowded outdoor events like parades, music festivals, or sporting events.
Can employers now change their policies on mask use? Not so fast.
First, the CDC’s guidance does not override local, state, or federal rules on mask use. This includes any state or local mask mandates which remain in effect – at least for now. In addition, OSHA’s current guidance on COVID-19 recommends that employers not distinguish between workers who are fully vaccinated and those who are not, although this could change in the coming days or weeks when OSHA is expected to issue an emergency temporary standard on COVID-19 (Assuming the standard is still issued, there is a real question now – in light of the CDC’s guidance that seemingly returns life to normal for those who are vaccinated, whether the process applicable to emergency rule making will apply if the “emergency” may now be all but over?).
Second, the CDC’s guidance still requires mask use on “planes, buses, trains, and other forms of public transportation” as well as, in other high-risk workplaces including health care settings, correctional facilities, and homeless shelters.
Third, any changes to mask policies must be carefully considered and take into account the difficulty of requiring some employees but not others to wear masks. This includes challenges in confirming who is fully vaccinated, enforcing mask use rules for only some workers, and potential issues with employee morale. Employers should also consider the possibility of discrimination claims if vaccination status is used as a reason to exclude disabled individuals from certain activities.
It is also important to keep in mind that a person is not considered “fully vaccinated” until two weeks after they take the second dose of a Moderna or Pfizer vaccine, or two weeks after the single-dose Johnson & Johnson vaccine.
While many will undoubtedly be eager to take off their masks, employers should carefully consider their mask policies before eliminating them, and await further guidance – from OSHA and the various local and state governments applicable to their employment locations...
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