Publication

May 17, 2021Client Alert

Recent Changes Allow Some Employees to Remove Masks

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) updated their guidance regarding masks. It was updated further on May 16, 2021. Specifically, the new guidance states 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 regulation including local business and workplace guidance.” 

CDC's Updated Guidance

The guidance further states that:

“COVID-19 vaccines are effective at protecting you from getting sick. Based on what we know about COVID-19 vaccines, people who have been fully vaccinated can start to do some things that they had stopped doing because of the pandemic.” 

This guidance has left many employers wondering whether they can lift their mask requirements. Consistent with every pandemic-related guidance, the answer is – it depends.  

CDC is not the only authority on the subject. OSHA applies to workplace safety, and OSHA guidance still contains a mask requirement. Surprisingly, following the issuance of the CDC guidance, earlier today (May 17, 2021) OSHA updated its guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” While OSHA did not change its guidance, it added a note at the beginning of the guidance, which states as follows:

The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

OSHA's Updated Guidance

This may sound like an employer can rely on the CDC guidance for fully vaccinated individuals, but employers must be very careful to understand CDC guidance fully. 

Given the statement posted on its website today, May 17, indicating that employers should follow the CDC guidance until OSHA has spoken on the topic, we believe that this provides a greenlight for employers to lift their mask requirement, but only for fully vaccinated employees and with significant limitations based upon CDC guidance and local rules. Additionally, as an employer makes these decisions, even if no state or local rules apply, the decision regarding masks should consider the potential need to reverse course and require masks again in the future, and consider the realities of the specific workplace. These considerations should be incorporated into employers’ existing COVID-19 protocols. Finally, such changes may be reversed once OSHA revises guidance or issues an Emergency Standard.

What Will OSHA Do? 

Over the last few weeks, OSHA held hearings regarding a potential emergency temporary standard on COVID-19. Chuck Palmer testified at one of those hearings regarding the preemptive effect that OSHA would have on state and local COVID-19 rules. It was a little difficult to testify about a standard that OSHA would not share with anyone. But Chuck’s sense was that OSHA was having some difficulty convincing the Oversight Committee that was considering the standard (which included representatives from the Office of Management and Budget and Small Business Administration) that this was the right time to issue a standard.

One of the questions asked by the Oversight Committee was whether OSHA could issue a standard that would be applicable in some jurisdictions or industries based upon local infection rates or vaccination rates. This question signals a possibility that OSHA might consider “masking up” as cases increase, or “masking down” at some point where case numbers are low and/or as vaccination percentages reach a certain threshold in the region or industry. Chuck responded by saying that this would be a challenging standard to write and enforce because COVID-19 is such a moving target and it would be hard to hold employers to a continuously changing law.   

However, some employers may wish to make decisions based upon local case rates, or their own percentage of vaccinated employees. Employers may be wise to update their existing procedures to identify the reasoning for decisions related to removing mask policies, and the events which would trigger a reversal and reimplementation of masks – such as increases in cases or variants that show resistance to the vaccine. Well thought out policies will provide a defense to complaints and/or OSHA inspections into COVID-19 safety. 

Remember that the CDC guidance says you can take off the mask if you are vaccinated.  Employers will have to make it clear, this is not a green light for everyone. How will you enforce that as an employer? If OSHA comes in and employees are not wearing masks and are not fully vaccinated, that is going to be a violation of CDC (and OSHA) guidance. You are going to need some level of assurance that those not wearing masks are fully vaccinated. 

The OSHA guidance says that employers should provide education on vaccines. So, employers will need to educate workers on the reasons why persons who are vaccinated can remove their masks, while employees who are not vaccinated must continue to wear a mask until they are fully vaccinated.  

There is an employee misconduct defense under OSHA. The traditional proof necessary under OSHA requires that an employer must prove four elements:

  1. a policy;
  2. clearly communicated;
  3. employer efforts to verify compliance; and
  4. corrective action taken when non-compliance is discovered. 

Therefore, employers would be wise to state the policy in writing that only fully vaccinated employees may discontinue mask use until further notice, create proof of communication regarding that policy, and take some effort to verify compliance with the policy. This may include requiring an employee to verify vaccination in a written statement or provide the vaccination card received at the time of vaccination. If an employer learns an employee is not vaccinated, and is not wearing a mask, there should be corrective action such as re-education, a warning, or requiring the employee to work from home (if available).

Finally, there may be employees who, because of religious or medical reasons, will not or cannot get a vaccination. It would be a reasonable accommodation to allow said person(s) to work but continue to wear a mask and socially distance, or allow said person(s) to work from home. Since it is unclear how much protection is provided to the wearer of the mask, it is very important that all other employees who are not wearing masks are vaccinated, and that the unvaccinated individual(s) remains at least six feet from them.

Conclusion

Prior to lifting your mask requirement:

  1. Evaluate state and local rules applicable to your workplace.
  2. Evaluate your site specific and regional COVID-19 case rates and consider whether now is an appropriate time. 
  3. Consider your site specific and regional vaccination rates. 
  4. Determine from those rates at what point it makes sense to release employees from the mask mandate, and at what point to reinstate masks if conditions worsen. 
  5. Revise existing response plans to incorporate those changes. 
  6. Educate workers on your plans, the benefits of the vaccine, the availability of the vaccine locally, time off or other arrangements for getting vaccinated, the rules regarding masks and vaccination status at your workplace, the consequences of non-compliance, and a person to contact with questions, concerns, or the need for accommodations related to vaccinations and masks.   
  7. Continue to monitor for changes to federal, state and local requirements including issuance of an OSHA standard. 

For questions contact your Michael Best Attorney, or Michael Best's Workplace Safety and Health team.

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