Workplace Legal Experts Urge Caution On Lifting Mask Mandates

This puts employers and business owners in the position of asking employees and customers if they are fully vaccinated. This is sure to generate controversy - and legal action. JL

Lisa Nagele-Piazza reports in The Society for Human Resource Management:

The U.S. CDC said that fully vaccinated people no longer need to wear masks in many indoor and outdoor settings. But employees and customers will still need to follow the COVID-19 safety rules set by individual businesses—including mask mandates. The new CDC guidance applies only to employees who are fully vaccinated and only if applicable state and local guidance and orders allow it. Plus, the guidance does not apply in every industry. Employers also need to grapple with asking employees if they've been vaccinated. 

After more than a year of mask mandates and recommendations from public health authorities, the U.S. Centers for Disease Control and Prevention (CDC) has said that fully vaccinated people no longer need to wear masks in many indoor and outdoor settings. But employees and customers will still need to follow the COVID-19 safety rules set by individual businesses—including mask mandates.

"You can resume activities without wearing a mask or staying six feet apart, except where required by federal, state, local, tribal or territorial laws, rules and regulations, including local business and workplace guidance," the CDC said.

So what does the news mean for employers? "Don't throw those mask policies out just yet," said Adam Pankratz, an attorney with Ogletree Deakins in Seattle. The new CDC guidance applies only to employees who are fully vaccinated and only if applicable state and local guidance and orders allow it. Plus, the guidance does not apply in every industry. Employers also need to grapple with asking employees if they've been vaccinated.  

"For now, though, it sure feels one big step closer to normal," he said.

Kevin Troutman, an attorney with Fisher Phillips in Houston, said, "Employers will be anxious to implement this latest CDC guidance, but we are still not entirely sure how OSHA [the Occupational Safety and Health Administration] will apply it in the context of its workplace guidance."

He's hoping that OSHA will soon update its guidance to provide clarity that is consistent with the CDC's new guidance. "Unless and until they do, employers should be aware that OSHA's workplace safety guidance still applies," he said.

We've rounded up articles and resources from SHRM Online and other trusted media outlets on the news.

'Downward Trajectory of Cases'

"We have all longed for this moment when we can get back to some sense of normalcy," said CDC Director Rochelle Walensky during a White House briefing on May 13. "Based on the continuing downward trajectory of cases, the scientific data on the performance of our vaccines and our understanding of how the virus spreads," she said, "that moment has come for those who are fully vaccinated."

(Yahoo! News)

Mask Use Still Advised in Some Situations

Fully vaccinated people should note that the CDC is still recommending that people wear masks in certain places. They still must cover their faces and practice physical distancing when they go to a doctor, hospital or long-term-care facility; when they travel by bus, plane, train or another mode of public transportation; while they are in transportation hubs, such as airports and bus stations; and when they are at a prison, jail or homeless shelter.

(The New York Times)

What Does 'Fully Vaccinated' Mean?

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. For the new guidelines to apply, travelers must be "fully vaccinated," which means that two weeks have passed since they received a single-shot vaccine or the second dose of a two-shot vaccine.

(U.S. Centers for Disease Control and Prevention)

Stricter State and Local Laws May Apply

Although the CDC is no longer recommending that fully vaccinated people wear masks in many situations, some state and local governments have stricter standards that businesses must follow. For instance, California still has a statewide mask mandate. Gov. Gavin Newsom, however, recently said some restrictions, particularly outdoor mask requirements, may be lifted on June 15 when California is expected to reopen its economy. "But for indoor activities, we will still have, likely, some mask guidelines and mandates. But we hope, sooner than later, that those will be lifted as well," he said during a press conference.

(Los Angeles Times)

Retail Employers Respond to Guidance

The new guidelines create challenges for retailers that must comply with local laws and may not know whether their employees and customers are fully vaccinated. CVS, Walgreens and Macy's representatives said they are reviewing their mask policies in light of the guidance. Some retailers, such as Home Depot and Starbucks, said they plan to keep their mask mandates. Union and trade association leaders in the grocery and retail industries also recommended that stores continue to require masks. Marc Perrone, president of the United Food and Commercial Workers' union, called the CDC guidance "confusing" and said it "fails to consider how it will impact essential workers who face frequent exposure to individuals who are not vaccinated and refuse to wear masks." Lisa LaBruno, senior executive vice president at the Retail Industry Leaders Association, said the guidance "creates ambiguity" for retailers because "it fails to fully align with state and local orders" that mandate masks.

(CNN)

Updated Travel Guidance

Last month, the CDC also issued updated travel guidance for fully vaccinated people. For domestic travel, people who are fully vaccinated do not need to get tested for the coronavirus before or after a trip or isolate upon their return. For international trips, vaccinated travelers do not need to obtain a pre-travel test before departing the U.S. (unless their destination requires it) and do not need to self-quarantine after arriving in the U.S., according to the CDC. However, international travelers still must provide proof of a negative COVID-19 test taken no more than three days before boarding a flight to the U.S., and the CDC recommends getting tested again three to five days after entering the country. The agency said unvaccinated people should continue to follow prior guidelines.

(SHRM Online)

Coronavirus and COVID-19 Resources

The coronavirus pandemic has changed the way we work and manage employees. Here is some key information to help employers and HR professionals work their way through the pandemic.