The CDC has significantly relaxed its COVID-19 safety recommendations for people who are fully vaccinated. According to the CDC, fully vaccinated people no longer need to wear a mask or practice social distancing in many situations. Generally, people are considered "fully vaccinated" two weeks after a single-shot vaccine or the second dose of a two-shot vaccine.
State and Local Mask Requirements
While the CDC has relaxed masking recommendations for fully vaccinated people, employers still need to comply with state and local mask requirements. For instance, although the state of Minnesota has largely eliminated its mask mandate in light of the new CDC guidance, Minneapolis and St. Paul still have mask mandates in place for vaccinated and unvaccinated people.
For now, OSHA is referring employers to the new CDC guidance for safety measures appropriate for fully vaccinated employees. Thus, absent state or local law requirements, OSHA is giving employers the green light to change their mask requirements and only require masks for unvaccinated employees. Employers considering eliminating a mask requirement altogether need to keep in mind that following OSHA's guidance, which includes continuing to require masks for unvaccinated employees, may be the clearest way to ensure compliance with OSHA's General Duty Clause.
Importantly, the new CDC guidance about masks does not impact whether an employer has a voluntary or mandated vaccination policy.
Removing the mask requirement for fully vaccinated employees may incentivize employees to be vaccinated. However, having different mask requirements for fully vaccinated employees versus unvaccinated employees may be difficult to manage in some workplaces, depending upon employee preferences and workplace culture.
There are three key considerations for employers deciding to change their mask requirement for fully vaccinated employees:
1. Employers should consider requiring proof of vaccination.
An employer will need to decide whether to rely on the honor system or require employees to show proof of COVID-19 vaccination. There are good reasons to require employees to show their CDC vaccination card. Having verification of vaccination status on hand would be important in the event of an OSHA complaint or inspection. An employer should have a clearly communicated policy and take steps to verify compliance and correct noncompliance. In particular, the policy should clearly state what documentation is required (the CDC vaccination card) and that without the required documentation, an employee needs to comply with the mask requirement.
When verifying vaccination cards, employers should avoid asking any follow-up questions which may elicit prohibited information about an employee's disability under the Americans with Disabilities Act. Thus, an employer policy should also specify information an employee should not provide, such as any medical or genetic information related to the vaccination.
2. Employers should protect vaccination confidentiality.
The EEOC considers the vaccination status of employees to be confidential medical information even though employees who choose not to wear masks will be broadly disclosing that they are fully vaccinated. The EEOC permits an employer to inquire about an employee’s vaccination status, but the employer is required to keep this information confidential. For this reason, employers should limit who has access to the information employees provide about their vaccination status and should develop a written protocol for collecting vaccine information and maintaining its confidentiality. Personnel with knowledge of vaccination status should refrain from commenting on vaccination status and use this information only for administering the mask policy.
3. Employers should ensure a safe and productive working environment for all employees.
Employers should train managers and supervisors to ensure masked and unmasked employees are treated the same, keeping in mind that a mask/no mask policy is different than a vaccination policy. Fully vaccinated employees may voluntarily take advantage of the policy and forego wearing masks, while some may decide to continue wearing masks. Other employees will not be able to avail themselves of the relaxed mask requirement because they cannot or will not be vaccinated due to a medical condition or a religious belief. The best way to guard against discrimination or harassment based on a protected status such as disability or religion is to make sure masked and unmasked employees are similarly treated by managers and supervisors.
Likewise, employers need to direct employees to not treat each other differently based upon whether they are wearing a mask. Employers should take steps to prevent conflict, as some employees are likely to have strong opinions about mask-wearing. In particular, employees should be discouraged from inquiring, commenting on, or discussing another employee’s vaccination status. It is also advisable to include in the employer’s mask policy a process for employees to share concerns about mask-wearing. The policy should also state that any employee who confronts another employee about their vaccination status will be subject to discipline.
We Can Help
Employers can anticipate that the CDC's new recommendations for fully vaccinated people will spur additional guidance from the EEOC, OSHA, and state and local lawmakers. Maslon's Labor and Employment Group is available to help as you navigate managing your workplace in an ever-changing legal landscape.