The recent announcement from the CDC that fully vaccinated people no longer need to wear a mask or physically distance in any non-healthcare setting was a relief for all Americans. (A person is considered fully vaccinated two weeks after they have received the second dose in a two-dose series (Pfizer-BioNTech or Moderna) or two weeks after they have received a single-dose vaccine (Johnson and Johnson/Janssen)). However, the guidance did not overrule federal law, workplace guidance, local business restrictions, or state, local, or other similar regulations. More importantly,  the CDC’s announcement offered no specific guidance for employers in need of guidance to manage their workplaces.

Employers can relax their mask mandates and social distancing requirements for  fully vaccinated employees,  but they should consider some important factors before doing so:

• OSHA – The CDC only sets standards for the American public to follow. The CDC does not regulate our workplaces. Instead, our workplaces are regulated by OSHA, and OSHA can find employers in violation of safety rules and issue citations. OSHA has not changed its guidance on mask usage and social distancing in the workplace since January 29 and has not yet reacted  to the CDC’s announcement.

• Local Regulations – Employers need to assess whether the state or local government where they operate maintains a mandate. The CDC does not override state or local rules. 

• State OSHA Plans – Some states  maintain their own OSHA equivalent so employers should carefully review any stricter standards implemented by their states.

• Finding the Fully Vaccinated Employees – For employers to provide mask and social-distancing relief to fully vaccinated employees, they will need to identify those who are fully vaccinated via some level of certification. Employers should work with legal counsel to avoid the risk of violating confidentiality laws when trying to track these employees.  

• Protect Masked Workers from Mistreatment – Some employees may be excluded from vaccinations due to legitimate medical or religious reasons and may be required to continue wearing masks.  Employers need to implement protocols to avoid mistreatment of these unvaccinated employees.  Employers should reinforce that retaliation, discrimination, and harassment will not be tolerated and include this prohibition in written policies distributed to all workers.

• Regulating Guests: The CDC’s announcement does not include information about how employers should determine whether its guests are fully vaccinated and cleared for a mask-less experience.

What should employers do?

Conservative employers are maintaining the status quo at this time awaiting clarity from the EEOC, OSHA, and state and local authorities before implementing any changes. The CDC announcement expressly states that employers and businesses can continue to maintain mask mandates and social distancing policies.

For more information on workplace guidance, contact the attorneys at York Bowman Law.