Complete Story
05/18/2021
7-Step Blueprint for a Mask-Less Workplace
Source: Fisher Phillips, May 14, 2021
The announcement yesterday from the CDC that fully vaccinated people no longer need to wear a mask or physically distance in any non-healthcare setting was a welcome relief for all Americans and a hopeful sign that we have turned a significant corner with the COVID-19 pandemic. But the announcement included an important caveat – that the guidance did not overrule federal law, workplace guidance, local business restrictions, or state, local, or other similar regulations. And because the CDC’s announcement offered no specific guidance for employers, many workplaces may feel unsure how to proceed. The good news is that the new rules seem to offer a path forward for those employers that want to proceed to a mask-less workplace – but such a path involves some risks to consider and hurdles to overcome. There’s a seven-step blueprint for employers to get to that point.
The CDC’s Announcement in a Nutshell
Before you take any action, you should make sure you understand what the Centers for Disease Control and Prevention (CDC) announced yesterday. In a nutshell, the May 13 announcement indicates that fully vaccinated people can now resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. To make clear, the CDC’s announcement states that some business settings may choose to continue to require masks and social distancing. Those in healthcare settings, however, have no choice: they need to continue to follow previous guidance regarding masks and social distancing regardless of vaccination status.
Further, fully vaccinated people can refrain from being tested or quarantining following a known exposure to a COVID-19-positive person (assuming the vaccinated person remains asymptomatic) and can be excluded from routine screening tests. Finally, they can resume domestic travel without testing or quarantine periods, and can travel internationally without any U.S.-based requirements before or after their trip.
According to the CDC, a worker is considered fully vaccinated two weeks after they have received the second dose in a two-dose series (Pfizer-BioNTech or Moderna) or two weeks after they have received a single-dose vaccine (Johnson and Johnson/Janssen). Also, there is currently no time limit on “fully vaccinated” status (although this may eventually change if research determines that booster shots are necessary).
What Risks Remain? The Not-So-Magnificent 7
For employers considering relaxing or eliminating your mask mandates and social distancing protocols for those who are fully vaccinated, there are at least seven considerations to take into account before proceeding:
- Local laws and regulations may still require you to enforce such rules regardless of vaccine status.
- The federal Occupational Safety and Health Administration (OSHA) has not yet relaxed its COVID-19 standards for workplaces.
- States with their own OSHA equivalents may also have different standards to consider and these state agencies could step in as necessary.
- If you choose to mandate the vaccine, there remains an outside risk of a lawsuit from someone hesitant to get inoculated.
- Even if you do not mandate the vaccine, you would need to inquire about and probably track the vaccine status of your workers to determine whether someone is fully vaccinated, which could raise privacy and disability discrimination concerns.
- Some of your workers may have legitimate medical or religious reasons for abstaining from the vaccine, requiring you to take their accommodation status into account when developing business-wide policies.
- Workers who are unvaccinated and thus required to continue wearing masks and maintain social distancing could have a claim for retaliation if they are harassed or discriminated against in violation of federal safety laws or other legal principles.
