What Does the New CDC Guidance on Masks Mean for Employers?

13 May 2021 Blog
Authors: Scott T. Allen
Published To: Labor & Employment Law Perspectives Coronavirus Resource Center:Back to Business Health Care Law Today

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...

COVID-19 continues to impact companies in all sectors of the economy.  Foley is here to help our clients effectively address the short-term and long-term impacts on their business interests, operations, and objectives. Foley provides insights and strategies across multiple industries and disciplines to provide timely perspective on the wide range of legal and business challenges that companies face conducting business while dealing with the impact of the coronavirus. Click here to stay up to date and ahead of the curve with our key publications addressing today’s challenges and tomorrow’s opportunities. To receive this content directly in your inbox, click here and submit the form.


This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.


Related Services