A few weeks ago, the Centers for Disease Control and Prevention (CDC) issued updated recommendations for individuals who have been fully vaccinated for COVID-19, sparking a multitude of discussions nationwide as states and localities address the confusion, and raising even more questions for businesses and employers. The CDC recommendations, in summary, provide that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, trial, or territorial laws, rules, and regulations, including local business and workplace guidance.” In light of those recommendations, employers first will need to determine whether to lift any workplace mask mandates until more guidance is issued. If they decide to do so, there are a few points that employers should consider.
Over the past week, large retailers such as Target, Best Buy and Home Depot have lifted or eased mask requirements for fully vaccinated customers, but critics were quick to question how retailers could even verify whether certain customers were vaccinated. The same applies for employers. For employers considering whether fully vaccinated employees can refrain from wearing a mask in the workplace, what should be done to verify the vaccination of employees? Initially, a policy should be created and circulated that details the process of verifying whether an employee has been fully vaccinated, which would entail the records an employee needs to provide (e.g., a vaccination card) and what information the employee should not provide, such as unrelated medical or genetic information that would run afoul of the Americans with Disabilities Act of 1990 (ADA) or the Genetic Information Nondiscrimination Act of 2008 (GINA). If your employees are unionized, however, consider whether you must first consult with the union before implementing this policy.
While retailers were quick to make a decision on easing/lifting mask requirements for their customers, employers should take a much more cautious approach with respect to their employees. Earlier in January of this year, OSHA recommended that employees practice social distancing and wear face masks regardless of vaccination. Further, there will undoubtedly be some employees who do not wish to be vaccinated due to personal, medical and/or religious reasons. Thus, an accommodation may be appropriate under certain circumstances. Consideration should also be given to whether unvaccinated employees required to wear masks in the workplace may perceive vaccinated employees as being treated more favorably. We anticipate updates to be issued by OSHA and the EEOC in relation to these updated CDC regulations, so we should have a clearer picture as the summer of 2021 progresses.