Employment Law

Making Sense of the New CDC Mask Guidelines

Since the early days of the COVID-19 pandemic, understanding and following all the guidelines from the Centers for Disease Control and Prevention (CDC) has proven challenging at times. Now with the new guidance issued on May 13, 2021, many of us are not sure how the workplace is affected and how to proceed when visiting private businesses. An experienced employment attorney can help guide your business through these complicated and evolving guidelines.

What the New Guidance States

According to the May 13 guidance, the CDC has indicated that fully vaccinated people are not required to wear masks or physically distance outdoors, as well as in specific indoor environments. To be considered “fully vaccinated,” individuals should have received—at least two weeks ago—the second dose of a two-dose FDA-approved vaccine or one dose of a single-dose FDA-approved vaccine.

What the Exceptions Are

These guidelines are not applicable to healthcare settings or public transportation, such as buses, planes, and trains. There are also exceptions for environments governed by state, federal, tribal, territorial, or local laws. Specifically, the guidelines do not alter state and local regulations, such as those in California, which currently continue to require fully vaccinated individuals to wear masks in certain environments. In addition, policies for private businesses and workplaces can override these new guidelines.

What OSHA Says

On May 17, 2021, the Occupational Safety and Health Administration (OSHA) weighed in and instructed employers to follow the new CDC guidance. The agency indicated it would be reviewing the guidelines and may update its website and COVID-19 materials accordingly.

How Businesses Should Proceed

Given OSHA’s response, businesses have permission to follow the new CDC guidelines, making exceptions as noted for healthcare settings and overruling laws. However, private businesses are also within their rights to maintain their own mask and social distancing policies.

The Equal Employment Opportunity Commission (EEOC) stated in December 2020 that employers are allowed to ask if their employees are vaccinated, and this new CDC guidance does not impact that permission. However, employers should use caution in asking such a question. They should not penalize unvaccinated employees, and they should refrain from requesting any medical information (such as reasons why employees are not vaccinated) that could violate Americans with Disabilities Act (ADA) regulations.

With thought and great care, employers should develop ADA-compliant inquiries about the vaccination status of their employees, vendors, clients, customers, and other on-site visitors. They must update their policies and consider whether to differentiate between vaccinated and unvaccinated workers. They must also ensure that unvaccinated individuals who continue to wear masks are protected from harassment or discrimination.

Some employers have chosen to mandate vaccines, and others have opted to provide incentives for employees to receive the vaccination. Whatever choices employers make regarding these new guidelines, it is critical that they understand and follow their local laws and any regulations specific to their industry. They are also encouraged to understand their company culture and do what they think is best for both their employees and the clients they serve. Consult with a seasoned employment lawyer to assess your business’ next steps in navigating the CDC’s evolving guidance on masks.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.