How employers can respond to CDC mask guidance in the workplace

On May 13, the Center for Disease Control (CDC) changed its COVID-19 masking guidelines, announcing fully vaccinated Americans could now unmask indoors. While the guidance remains subject to state, local and business requirements, employers are faced with this new challenge. Read on to consider h0w employers can respond to the CDC mask guidance for their workplace.

What does OSHA say about indoor masking?

The CDC has been looked to as the authority for how Americans should respond during the ongoing pandemic. However, the Occupational Safety and Health Administration (OSHA) is the federal agency that oversees workplace safety. What does OSHA say about the new CDC masking guidelines? As of May 17, 2021, according to their “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” webpage, the agency says:

The Centers for Disease Control and Prevention has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

As OSHA reviews the new CDC mas guidance and considers them for the workplace, they are referring employers to do the same.

Should employers proactively follow the CDC’s May 13^th masking guidance for fully vaccinated employees?

OSHA has not formally revised its existing guidelines and recommendations, which were last updated on January 29, 2021. Similarly, the Equal Employment Opportunity Commission (EEOC), the federal agency that oversees discrimination in the workplace, has not updated its COVID-19 guidance since December 2020. In the absence of these updates, employers need to proceed with caution and consider the benefits and risks of revising their mask policies prior to hearing from OSHA and EEOC on this issue.

With the lifting of the indoor masking mandate being lifted for fully vaccinated individuals, employers now need to take into consideration several new issues that could develop as they draw a distinction between vaccinated and unvaccinated employees. As a result, employers are trying to determine if the CDC’s May 13^th guidance works for them, when the goals of a safe work environment are paramount.

Six things employers should consider are the following:

1. State and local law – while the Pennsylvania Department of Health has confirmed that it will follow the CDC May 13^th guidance, there are local laws, such as in the City of Philadelphia, that require masks to still be worn indoors, regardless of vaccination status. It is important to understand what other laws may impact your ability to change your current mask policy for employees.
2. Verification of vaccinated employees – to protect your staff and ensure those not wearing masks are fully vaccinated, you may ask to see an employee’s proof of vaccination. Be sure not to ask any additional medical questions, so as not to violate employee privacy rights under EEO or ADA.
3. Enforceability – do you have the manpower or resources to monitor masking? If not, is the honor system sufficient? What are the reporting procedures for employee concerns?
4. Moving backwards – what if OSHA comes out with their response to the CDC May 13^th guidelines and recommends employers keep masks in place for all employees? Employers may be challenged to lift mask mandates, only to reintroduce them.
5. Equal treatment of employees – while not likely that all vaccinated employees will choose to unmask, the workplace may reflect the vaccination status of employees. Managers and supervisors face the challenge of treating employees equally, especially when it comes to in-person meetings or production floors mixed with masked and unmasked employees.
6. Morale – how will employees feel about 1-5 above? With employee mental health directly impacting safety, do you want to potentially add risk to the work environment? Conversely, will employees push back if you don’t relax masking rules?

Risks of following the CDC’s May 13^th masking guidance

Some employers have the luxury of a fully vaccinated workplace and following the CDC’s lifted mask mandate may be a no-brainer. Sure, there are circumstances like on-site vendors and contract employees to consider, but risks are limited. Plus, the decision to lift the mask mandate for employees should be distinct from the policy in place for third parties coming into the workplace.

In reality, most workplaces have a workforce that reflects the U.S. vaccination rates, with approximately 40% vaccinated employees. Many employers are using creative incentives and offering paid leave to encourage employee vaccination, as the COVID-19 vaccine still lacks FDA approval and remains under emergency use authorization.

Waiting for updated guidance from OSHA and EEOC on masking in the workplace provides the safest course of action for an employer looking to minimize their risk of a liability claim or possible litigation for violating employee rights or creating an unsafe work environment.

Ultimately, as employers consider CDC mask guidance, they should keep their focus on creating reasonable guidelines that provide a safe and fair workplace.

Attorney Loren L. Speziale is a lawyer at Gross McGinley law firm in Allentown. She counsels businesses and area industrial development authorities in local and state economic development matters.