Mask free in the 603: New CDC guidance for fully vaccinated employees

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By Brian Bouchard

On May 13, the CDC and White House announced that masks—with few exceptions—are no longer required for fully vaccinated individuals: indoors or outdoors. For everyone else, masks are still required. It’s vaxed or masked. The announcement—albeit welcome news—has left many employers scrambling on what to do with their mask and social distancing policies. Though sometimes stylish, masks probably are not everyone’s favorite and many would probably prefer to work without them. So what should employers do now that the mask mandate has been partially lifted?

First, understand that the CDC and White House announcement is not universal. Many states and municipalities still have mask mandates. Businesses, employers, and individuals must still comply with those mandates until they are amended.

Second, employers shouldn’t toss their mask policies just yet. Under the new guidance, unvaccinated individuals will still need to wear masks in the workplace. Additionally, guidance from OSHA has not kept pace with the CDC’s announcement. Although the White House’s announcement is an encouraging sign of how the administration will treat the issue, we still don’t know how OSHA will approach it and whether or not OSHA will find that some industries should keep practicing mask wearing.

Third, employers may want to understand who is fully vaccinated and who is not; or at least understand, what percentage of the workforce is fully vaccinated. Remember that the EEOC guidance on COVID-19 vaccinations provides that inquiries into whether someone has been vaccinated or whether they plan to become vaccinated (but no further) are not considered medical inquiries under the American with Disabilities Act. Medical inquiries, which are ones tending to elicit information about a person’s medical condition or disability, are permitted only when they are “job related and consistent with a business necessity.” Under EEOC guidance, employers are permitted to understand who has been vaccinated and who has not been vaccinated. That said, employers should exercise caution in collecting and storing information like this, as privacy issues abound. At a minimum, such information should not be stored in the employee’s personnel file.

Finally, given this newfound return to quasi-normalcy, some employers may be considering whether to mandate vaccines to protect customers, clients, and patients, or even just to beget a totally mask-free work environment. Vaccine mandates are delicate. Employers must remember that some employees may have religious objections or disability-based reasons (such as a contraindication) for not being vaccinated. Those concerns must be managed carefully through interactive processes and accommodations must be provided where appropriate. Employers should additionally be cognizant of workers' compensation issues that may emanate from a mandatory vaccine, such as when an employee has an adverse reaction, as well as compensation issues. Time spent receiving a mandatory vaccine is likely compensable time. Any employer considering a mandatory vaccine program—or anyone considering incentivizing the vaccine—should consult with employment counsel before rolling out those initiatives.

All told, employers should be cautiously optimistic with the CDC’s new guidance. COVID is by no means over, but a return to normal workplace conditions is on the horizon (assuming, of course, that remote work isn’t here to stay but that’s a topic for another post)

Brian is a seasoned litigator and counselor at Sheehan Phinney in Portsmouth, New Hampshire, where he works in the firm’s litigation and labor and employment departments. In the labor and employment field particularly, Brian counsels and represents companies through all manner of complexities, including claims involving discrimination, retaliation, and wage and hour violations, questions involving employee management, executive contracts, employee mobility, and legal compliance. Brian’s clients range from VC backed tech companies in Boston, to small rum distilleries on the Seacoast, and everything in between. Brian has written and lectured on legal topics throughout New England and is never unimpressed by the complex issues facing employers, businesses, and individuals on a daily basis.

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While the following information may include some general guidance, it is not intended as, nor is it a substitute for, legal advice.