To Mask or Unmask; that is the Question

Every business in the United States has been asking itself these past few days whether to drop any requirements it may have for visitors or employees to wear face masks since the CDC changed its COVID-19 guidance related to masks and physical distancing for individuals who are fully vaccinated on May 13. It seems that national retailers are announcing every hour the past few days that “fully vaccinated” individuals, including their employees, will no longer be required to wear a mask before entering their stores. 

Most, if not all, of these retailers, will not require documentation from their customers and visitors proving their vaccinated status, at least in those states and jurisdictions that have announced they will be adopting the CDC guidance. Instead, they are simply asking their employees: Are you vaccinated, yes or no?

Accordingly, if you are an employer, other than a healthcare or correctional facility, which is specifically exempted from this guidance from the CDC, do you follow the lead of Walmart, CVS, and others or continue to require masks social distancing in your place of business? 

It depends.

A Regulatory Quagmire

The CDC guidance expressly limits the scope of its guidance to everywhere EXCEPT, where required by federal, state, local, tribal, or territorial rules or regulations, including local business and workplace guidance. If you are a business in a state like California, this guidance does not apply to your workplace for the time being. (California announced yesterday that it would keep its mask mandate in place for another month until June 15.)

What if you are not in California? You have to check first with your state and county health departments to see if this new CDC guidance even applies to your workplace. You have to check for mandates and guidance from OSHA state plans, such as California, Michigan, Oregon, Washington, and Local County or municipal guidance and mask mandates.

Once you have navigated through that regulatory dilemma, you must decide, should I require proof of vaccination or ask employees to tell me and rely on the honor system? Some commentators are now suggesting that if an employer does not require proof of vaccination, the employer might be subject to receiving a general duty clause citation from federal OSHA for not confirming an individual employee’s vaccinated status. We believe that while such a citation could be issued, it is difficult to see how OSHA could prevail before the Occupational Safety and Health Review Commission. The CDC guidance is silent on the issue.

California, on the other hand, in its proposed amendments to its COVID-19 Emergency Temporary Standard, explicitly mentions “documentation” from employees which shows they have received the vaccination. 

Vaccination Passport Bans

To further complicate matters, many states and local governments have just passed laws banning companies from requiring proof of vaccination status from individuals. Most of these new laws do not specifically include employees of an employer. Still, others are: either not entirely clear like Florida’s law or leave no doubt they apply to employees, like Montana. Montana’s law which took effect May 7, specifically bans employers (other than healthcare facilities) from even asking their employees to disclose their vaccination status. Of course, employers in Montana remain free to require all of their employees and customers to continue to wear masks and maintain social distancing. But really, how likely is that to happen? The Montana employers cannot allow their employees to voluntarily disclose their vaccinated status to be permitted to remove a mask because the law also prohibits discriminatory acts by the employer based on an employee’s vaccination status.

In sum, the myriad of conflicting rules, mandates, and guidance facing employers regarding requiring masks and asking employees about their vaccinated status is a complete mess, particularly for large employers with workplaces in multiple jurisdictions.

Hopefully, at least, Federal OSHA will update its requirements with new guidance soon to help employers determine how to remain in compliance. At the very least, it should announce this week what is happening with its long-awaited COVID-19 emergency temporary standards and is expected to address this new guidance from the CDC specifically.

In the interim, cautious employers need to continue to figure out the current state of all the local and state requirements that apply to their workplaces and comply with those requirements, irrespective of the CDC guidance. Suppose those local requirements permit vaccinated employees to remove their masks. Employers might still want to wait a few weeks to eliminate their mask requirements for employees, even if they are fully vaccinated, until further guidance is received from federal, state and local regulators on both the unmasking and vaccine verification questions.

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