What Does the New CDC Guidance About Masks Mean for Employers?
On May 13, 2021, the US Centers for Disease Control and Prevention (CDC) issued guidance rolling back recommendations for certain safety measures for those Americans who have been fully vaccinated against COVID-19. The updated CDC guidance states that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” How does this new guidance affect the workplace?
Before Making Changes, Check State and Local Laws
While Governor Wolf of Pennsylvania has said that the state (other than Philadelphia) will follow the CDC’s guidance (see the Pennsylvania Department of Health’s order here), to date, Pennsylvania has not revoked its orders regarding masking in private businesses; it is anticipated the Commonwealth will do so on or about May 31, 2021. Delaware has said that it will lift its mask mandate for fully vaccinated individuals on May 21, 2021, while New Jersey has not said what it will do in response to the CDC guidance. Given that there is some uncertainly, as a first step, employers may want to communicate to employees right away that the company is aware of the new guidance and is evaluating what changes may be made to workplace rules and procedures in light of the guidance.
If local and state guidelines and orders permit eliminating mask requirements for fully-vaccinated individuals in businesses not open to the public, employers will need to decide what works best for their workplace, keeping in mind that employers can have in place more stringent requirements than required by the local, state or federal government. The employer still has an obligation to maintain a safe workplace, and the employer may decide the best way to do so is to keep the workplace mask mandate in place.
Who Counts as Fully Vaccinated?
This guidance applies only to fully vaccinated individuals. An individual is fully vaccinated after they have received both doses of the Pfizer/BioNTech or Moderna vaccines, or one dose of the Johnson & Johnson/Janssen vaccine, and at least two weeks have passed since administration of the final dose. Individuals who have not completed this process should continue to observe social distancing and wear face coverings indoors.
Can We Ask Employees if They are Fully Vaccinated? Should We?
As discussed in a prior MEA alert, employers in most states (including Pennsylvania, New Jersey, Delaware and New York) are legally permitted to request proof of vaccination status in the form of copies of vaccination cards. When doing so, however, employers must keep in mind that the cards should be treated as confidential medical information, should be collected by Human Resources (as opposed to individual supervisors) and should be kept in an employee’s medical file, separate from the personnel file. If an employer is going to lift a mask mandate for the fully vaccinated at work, it makes sense for employers to request proof of vaccination via a vaccination card. Relying on the “honor system” is not the best way to ensure workplace safety.
What About Unvaccinated Employees?
Unless state and local regulations provide to the contrary, employers should continue to require unvaccinated employees to follow all appropriate mitigation measures, including wearing masks. In addition, it seems likely that some vaccinated employees will prefer to continue wearing masks due to personal or family medical reasons or other concerns, and employers should permit employees to take such measures when not in conflict with legitimate business needs.
If employers are going to relax protocols for fully vaccinated employees, in line with the new CDC guidance, employers must be mindful of the fact that this will draw a clear distinction in the workplace between vaccinated and unvaccinated people. This may come in conflict with an employer’s accommodation obligations under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 and the employer’s obligation to provide a harassment-free workplace, given that vaccines have become a hot button issue, and drawing the distinction could lead to unlawful harassment, bullying, discrimination, or other inappropriate conduct.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding pandemic-related policies or practices. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
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Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.