The U.S. Centers for Disease Control and Prevention (CDC) has recently updated their guidance to include that fully vaccinated people no longer need to wear masks in many indoor and outdoor settings. Yet an employer may have cause to pause before eliminating masks in the workplace. Here are questions to consider:
1. What does “fully vaccinated” mean?
CDC guidelines cover people who have received a vaccine authorized by the Food and Drug Administration (FDA), including the Pfizer, Moderna, and Johnson & Johnson (Janssen) vaccines. “Fully vaccinated,” means that two weeks have passed since they received a single-shot vaccine (J&J) or the timely second dose of a two-shot vaccine (Pfizer or Moderna).
2. Does CDC guidance overrule State and local restrictions?
The CDC communication is guidance and not regulation. Employers should stay informed on the ever-changing regulations issued by State and local governments that impact the employer location(s) of operation. Massachusetts has recently relaxed mask restrictions for public space but does not specifically speak to work environments.
Employers that are not subject to more stringent local laws will have to choose between removing or easing mask policy mandates or keeping stricter rules in place. In the end, business management should stay focused on worker and customer safety in their specific work environment to manage the risk of potential liability.
3. Does the recent CDC guidance apply to every industry?
Currently, no. Although there are variances in State and local settings, there is a pattern of masks continuing to be required in public and private transportation, schools and educational locations, childcare programs, healthcare facilities, health provider offices, congregate-care facilities, home health encounters, and rehabilitative settings as examples.
4. How to handle proof of vaccination?
If removal of masks is to be based on being “fully vaccinated” the employer will need to choose how to verify vaccination without running afoul of overlapping regulation. Options include requiring proof, requiring a signed statement of vaccination status, acceptance of the verbal statement of vaccination status, trust of employee compliance. See Clarity for Employers Requiring or Encouraging Employee Vaccinations for more information.
5. Will a change in policy place unvaccinated employees at risk of being bullied or harassed?
Business leaders need to weigh this question based on their knowledge of their work environment. There are legitimate reasons that employees may be delaying or declining vaccination. Peers may not be sensitive to the factors weighing on such a decision. A change in policy should consider how to handle employee harassment should it arise.
6. Could a change in policy be viewed as discrimination against an employee subset?
Lack of vaccination could be an indicator of a protected category of employees. Business
leaders need to sensitive to the possibility and consider all accommodation requests
from employees who are unable to receive a vaccine due to disability, medical condition,
religious belief, age, or other protected reason.
The nation has entered what is hoped to be the beginning of the end of the COVID-19 pandemic.
There is common consensus on the desire to return to “normal”. There are sure to be bumps in the road. Each business needs to respond to recent CDC guidance with policies that feel prudent for the specific work environment at this time.