To Mask or Not to Mask? For Employers That is the Question!

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May 15, 2021

Unless you have been in a cave, you are aware that on May 13, 2021, the Centers for Disease Control and Prevention (CDC) announced that individuals who have been fully vaccinated for COVID-19 no longer need to wear a face covering in many settings. (CDC Guidance) Many of you shouted “HOORAY!” when you heard this news as you hoped it meant some relief from masks in your workplaces.  Unfortunately, what complicates this issue is that the CDC’s announcement specifically excludes “federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”  As you review your policies in light of this announcement, here are some things to consider with the “mask or no mask” issue.

  1. What will OSHA do? We are waiting for updated COVID guidance from the Occupational Safety and Health Administration. OSHA’s guidance from January 29, 2021, warns employers to not treat vaccinated employees differently from unvaccinated employees.  It writes, “workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”  (OSHA Guidance)

So, the million-dollar question is: if you lift the mask requirement in your workplace for fully-vaccinated employees, what is the RISK with OSHA?  Here are our thoughts:

i) It is unlikely OSHA will randomly audit workplaces regarding a mask policy;

ii) While a mandatory standard is pending, OSHA has power under the general duty clause to issue a citation;

iii) Employees who make good-faith safety complaints to an employer are protected from retaliation. If an employer terminates an employee for a complaint related to the mask issue, OSHA will likely find that to be retaliatory which could result in back pay, reinstatement or fines against the employer.

In sum, we can only hope that OSHA issues some guidance soon and we will let you know when this happens!!

  1. What about state and local mandates or guidance? The CDC announcement excludes government mandates. There is no Wisconsin state mandate. However, you should review the mandates in states where you have workers, and the local municipal or county mandates in your Wisconsin locations.  Some locations are enforcing mask mandates with fines and penalties. Some locations, like Wausau, have “resolutions” or “advice memorandums” whereby the local government recommends masks, but there is no enforcement mechanism or penalty tied to the recommendation.  Your organization may decide to ignore these recommendations based on the new CDC announcement.  Human Resources should be prepared to explain to inquiring employees that the organization is choosing to follow the CDC guidance over a local “recommendation” as it believes the CDC has the most up-to date information. Many employees may not even be aware of a local recommendation so it is unlikely to be an issue.
  2. Can we really ask employees for proof of full vaccination? Right now, in Wisconsin, yes you can. If you collect this information, make sure you are following the ADA, OSHA, and other applicable laws, and keeping the information within the Human Resources department. There is legislation pending in several states that may render such collection efforts unlawful so keep apprised of the laws in the states where you have workers.
  3. Do we HAVE to ask employees for proof—can’t we just use the honor system? Without more guidance from OSHA, or other government agencies, there is no requirement that you seek proof of vaccination. If you issue a “no mask for vaccinated” policy, on the honor system, the worst-case scenario is that unvaccinated employees show up without masks which results in an outbreak of COVID-19. Employees who get COVID in the workplace will be able to file a workers’ compensation claim and if they can establish you were lax in requiring masks for unvaccinated workers, could obtain a safety penalty against you. Further, it is possible that if a third party gets COVID in this manner, the immunity protection under state law may not apply. However, if the person who gets COVID was unvaccinated and not wearing a mask then it’s uncertain how far they will get with either claim!
  4. How do we handle those employees who refuse to get the vaccine and complain they still have to wear a mask—is this discrimination against them? It depends on the reason. In this situation, you have the right to ask the employee why they are refusing to get the vaccine. If it is due to medical or religious reasons, they may be protected by Title VII, Americans with Disabilities Act, or similar state law. At that point you need to engage in the “interactive process” to establish whether or not you can accommodate them without creating a “direct threat” in the workplace. We strongly recommend you work with legal counsel in such a situation so as to minimize legal risk of an EEOC claim.

In sum, we have clients who fall in every single one of the following categories:

i) have NEVER required masks for anyone;

ii) plan to require masks for everyone into the indefinite future;

iii) plan to wait until any existing local mandate or guidance is lifted, then lift mask requirement  for everyone;

iv) same as iii, but plan to only lift mask requirement for vaccinated;

v) plan to immediately lift mask requirements for vaccinated only; and

vi) already made masks “voluntary” back in March when the Wisconsin state order was invalidated.

SO, what should you do? We cannot answer that in an e-alert—but if you want to talk through this issue, we have a team that will help you create a plan for YOUR organization.

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The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.

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