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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 how employers can respond to the CDC mask guidance for their workplace.
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.
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 13th guidance works for them, when the goals of a safe work environment are paramount.
Six things employers should consider are the following:
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 Speziale collaborates with business owners and human resource professionals, providing legal guidance and risk management assistance with regard to employment law issues.