Should Employers Return to a Mask-Free Workplace?
By East Coast Risk ManagementMay 20, 2021Human Resources
By Renee Mielnicki, Esquire
The Centers for Disease Control and Prevention ("CDC") updated its guidance on May 13, 2021 to reflect a change in its recommendations for masks for fully vaccinated individuals. Specifically, the guidance provides that those who are fully vaccinated "can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance."
For reference, the CDC says that people are considered fully vaccinated:
The new guidance caused confusion for businesses on what to do with mask requirements for those that have been vaccinated. We have been speaking with a lot of them to provide options and risks for consideration. They are as follows.
Option One: Employers could choose to continue to require all employees to wear masks until the CDC advises that its safe for all individuals to remove them. This would obviously be the least risky option in terms of possible legal or regulatory claims.
Option Two: Some employers may choose to allow vaccinated employees to unmask but require unvaccinated employees to continue to wear them. Here are three possible risks with this approach:
The first is the risk of a workers' compensation claim by employees who claim they contracted COVID in the workplace. This claim may be hard to prove since the origins of a COVID infection are difficult to pin down.
Second, there is a possibility for a third-party legal claim, such as one from customers, claiming failure to mask caused them to get COVID at your business. As stated above, this claim may be hard to prove since the origins of a COVID infection are difficult to pin down; however, since the costs of responding to any lawsuit is time consuming and expensive, it is worth mentioning as a risk.
The third is a possible citation from the Occupational Safety and Health Administration ("OSHA"). OSHA is the federal agency responsible for enforcing the requirements of the OSH Act which is designed to ensure employers provide a safe workplace for employees. The OSH Act contains a "general duty clause" which requires employers to provide workers with a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm. OSHA has interpreted this clause to mandate the use of masks in the workplace to limit the spread of COVID-19. Since OSHA is the regulatory authority on maintaining a safe workplace, it can provide penalties to ensure compliance with the OSH Act. The CDC, on the other hand, provides health guidelines to protect the public. The CDC's guidance is just that…guidance. It does not have the authority to regulate what employers do as far as safety in the workplace. OSHA updated its guidance on May 17, 2021 in response to the CDC's May 13th update, but the guidance was unclear and confusing. At the top of OSHA's website page on the topic there is a banner referring employers to the CDC's new guidelines until OSHA updates its materials. Near the bottom of the page, OSHA still has this statement: "Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19." The banner at the top and the paragraph near the bottom seem to conflict with each other making OSHA's position on masks for vaccinated workers unclear. For these reasons, allowing even vaccinated workers to unmask at this time could put an employer at risk for an OSHA citation. (OSHA specifically states in the banner that it will be updating its materials which we hope will be soon to provide clarity.)
As you may have noticed, immediately after the CDC announced their new guidance, many businesses decided to make masks optional for vaccinated employees and customers, including Kohls, Target and Walmart. Disney World has said it will allow vaccinated customers to remove masks outside in the parks but will continue to require all guests to wear masks while on rides and in any other indoor area. None of these businesses have said customers will need to present evidence of vaccination. They are providing the option on the honor system. This could present risk for the reasons I mentioned above, especially given the possibility that customers who have not been vaccinated will decide to remove their masks, too.
Distinguishing between your employees who are vaccinated and those who are not is much simpler. Employers are legally permitted to ask for a copy of their employees' vaccine cards. This makes it possible to implement a rule that allows those showing proof of vaccination to take off their masks. However, this creates other potential issues, including the risk of discriminatory treatment if one of your employees is unvaccinated due to a disability and you allow unmasked employees certain advantages in the workplace. Most significantly, the risk of an OSHA claim described above remains, since it is still not certain that vaccinated people cannot carry and spread the virus.
Whichever option your business chooses will depend on your tolerance for risk. As always, we are happy to provide our clients and readers with information that helps them make the most informed decision possible. If you have questions about COVID-19 and the workplace or have any other questions related to human resources issues, we will be happy to help! Contact East Coast Risk Management by calling 724-864-8745 or email us at hrhelpline@eastcoastrm.com.
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