On May 17, 2021, we issued a client alert highlighting the CDC’s decision to lift mask mandates for those who are fully vaccinated in its Interim Public Health Recommendations for Fully Vaccinated People.[1]

It comes as no surprise that on the heels of the CDC’s announcement, Massachusetts will be implementing the CDC’s recommendations. In doing so, the Baker Administration is rescinding its COVID-19 Order No. 67 relating to mask mandates and also lifting mask mandates for those who are fully vaccinated—with a few exceptions.

This alert reviews the Baker Administration’s newly issued announcement, the Department of Public Health’s Advisory Regarding Face Coverings and Cloth Masks (the “Advisory”), and the practical implications that will follow for Massachusetts employers.

The Baker Administration’s Recission of Mask Mandate &
The Department of Public Health’s Advisory

According to the Advisory, the Baker Administration’s mask mandate and COVID-19 Order No. 67 is rescinded and no longer in effect as of May 29, 2021.  The Advisory does the following:

  • fully adopts the CDC guidance that those “who are fully vaccinated [ ] may resume all of the activities that [they] engaged in prior to the pandemic without wearing a mask or staying 6 feet apart[;]”  
  • reiterates that a person is fully vaccinated two weeks after their second dose in a two-dose series, such as the Pfizer or Moderna vaccines, or two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine;
  • like the CDC guidance, it makes it clear that it does not apply if a mask mandate or a need to socially distance exists under federal, state, or local laws, rules or regulations—which, according to the CDC, includes local business and workplace guidance;[2] and
  • warns that if a fully vaccinated individual becomes symptomatic, the individual should be tested and wear a mask until receiving test results.

Moreover, regardless of vaccination status, all people in Massachusetts must continue to wear face coverings in: (a) public or private transportation; (b) health care facilities and provider offices; (c) inside K-12 public schools, collaboratives, and approved special education schools; and (d) congregate care facilities.  Home care workers must also continue to wear masks if they are providing patient-facing care.[3]  

Practical Implications for Employers

            A host of practical implications will follow as employers implement workplace policies following these developments from the Baker Administration and the CDC.  Examples are included below.

First, employers that operate businesses that are not exempt from the mask mandate must continue requiring the use of masks.  Such businesses, as described above, include without limitation, public and private transportation, health care facilities, etc.[4]

Second, OSHA had previously recommended the use of face coverings and adherence to protective measures in the workplace, regardless of vaccination status.  Since the CDC’s newly issued guidance, however, OSHA announced that it is reviewing its’ guidance, and that updates are forthcoming.[5]  Until those updates are complete, OSHA is referring employers to the CDC’s Interim Public Health Recommendations for Fully Vaccinated People for information on measures appropriate to protect fully vaccinated workers.

Please note that we will continue to monitor these developments so that we can provide additional information once OSHA updates its materials and guidance relating to vaccinated individuals in the workplace and required safety protocols.

Third, employers and businesses considering whether to modify or rescind their own mask mandates in light of the CDC guidance and state Advisory should note the additional considerations, as we discussed in our May 17th client alert.  These considerations include:

Workplace Policies.  Generally, employers should implement consistent workplace policies that do not impact certain employees differently than others.  However, most, if not all, workplace settings will have employees who choose not to, or are not able to, get vaccinated against COVID-19.  An employee’s inability to get vaccinated may be triggered by either a disability or a sincerely held religious belief.  Accordingly, policies that may stigmatize or have a disparate impact on unvaccinated employees (such as requiring that only unvaccinated employees wear masks) may give rise to potential exposure.

Support Personal Preferences. Although certain employees and customers may appreciate ending a mask mandate, others may not.  To that end, a good practice moving forward is to ensure that employees and clients know that they have the option to continue wearing masks, regardless of whether they are fully vaccinated—and employers should consider supporting such personal preferences.

Employee Morale.  It may be helpful for employers to consider whether lifting a mask mandate will cause unease among its workforce because of the unknowns associated with the vaccine.  For example, we do not yet know with certainty either how long the vaccine will be effective or whether those who are fully vaccinated can transmit COVID-19.  These unknowns may be concerning to some.

Customer or Client Concerns.  Businesses should also consider whether lifting a mask mandate will cause customers or clients to be concerned. Again, more often than not, a business will not know whether a customer is fully vaccinated, or whether the customer is unvaccinated and concerned about protective measures.

Process for Confirming Vaccination Status.  For now, we know that the EEOC has taken the position that asking if an employee has been vaccinated is not a disability-related inquiry and is a permissible inquiry.[6]  If, and when, employers lift a mask mandate in the workplace, employers should consider implementing policies to confirm employees’ vaccination status.  Following guidance from the EEOC, such policy should provide that employees do not provide any medical information other than proof of vaccination.

Although asking if an employee has been vaccinated may be permissible, employers should be mindful that follow-up questions, including questions about the reason an employee did not get vaccinated, may elicit information about a disability.  To that end, employers need to tread these waters with care so as to avoid an impermissible line of questioning that could potentially create exposure under existing laws.

Additionally, employers will need to ensure—and require—that unvaccinated employees continue to follow all required safety protocols and procedures.

Privacy Rights.  Employees may have questions about their co-workers’ vaccination status.  Unless an individual voluntarily discloses their vaccination status, employers should refrain from disclosing an employee’s vaccination status to others because employees have privacy rights as to, among other things, their medical conditions, reasonable accommodation requests, and vaccination status.

We will continue to monitor any developments on this topic from the CDC, OSHA, and the state to provide additional helpful guidance.

Employers with specific questions are encouraged to speak with one of our employment attorneys.

This alert is for informational purposes only and may be considered advertising.  It does not constitute the rendering of legal, tax or professional advice or services.  You should seek specific detailed legal advice prior to taking any definitive actions.

[1] https://kslegal.com/cdc-lifts-mask-requirement-for-those-who-are-fully-vaccinated-but-massachusetts-employers-should-hold-tight/

[2] The Massachusetts Advisory does not specifically state that local business and workplace guidance may also require fully vaccinated people to wear a mask and physically distance. However, it refers readers to the CDC’s guidance—and the CDC guidance allows businesses to establish their own workplace policies, including ones that, among other things, require employees to continue wearing masks.

[3] A full list of venues where face coverings remain mandatory for both vaccinated and unvaccinated individuals can be found at: www.mass.gov/maskrules.

[4] Those exempt from the face coverings requirement are children five years of age and younger and persons for whom a face mask or covering creates a health risk or is not safe because of any of the following conditions or circumstances:  (a) the face mask or covering affects the person’s ability to breathe safely; (b) the person has a mental health or other medical diagnosis that advises against wearing a face mask or covering; (c) the person has a disability that prevents them from wearing a face mask or covering; or (d) the person depends on supplemental oxygen to breathe.

[5] https://www.osha.gov/coronavirus/safework

[6] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws