On May 13, 2021, the CDC lifted the mask mandate and the need to social distance for those who have been fully vaccinated in non-healthcare settings in its newly issued Interim Public Health Recommendations for Fully Vaccinated People.
According to the CDC, a person is considered fully vaccinated two weeks after receiving the single-dose Johnson and Johnson vaccine, or two weeks after receiving the second dose of the two-dose series of the Pfizer or Moderna vaccine. The CDC’s May 13th guidance makes clear that it does not apply if a mask mandate exists under federal, state, or local laws and regulations—including local business and workplace guidance.
Businesses may be wondering if and how this will affect existing workplace mask policies. The short answer for Massachusetts employers is: hold tight. Unless the mask mandate in effect in Massachusetts is lifted, workplace practices in Massachusetts will not be changing, for now anyways.
We discuss why here, while also exploring other important employer considerations.
Massachusetts Mask Mandate
Massachusetts’s mask mandate remains intact and is not affected by the CDC’s May 13th guidance.
On April 29, 2021, Governor Charlie Baker issued COVID-19 Order No. 67, effective April 30, 2021. (See https://www.mass.gov/doc/covid-19-order-67/download). This Order requires, in part, that:
- face coverings be worn at all times when indoors and in a public location
- face coverings be worn outdoors in a public location if unable to maintain 6 feet of social distance
- employers may require documentation in circumstances in which an employee who is required to wear a mask asks for an accommodation so as not to have to wear a mask due to a medical or disabling condition.
Order No. 67 states that it “shall remain in effect until rescinded or until the state of emergency is terminated.”
On the heels of the CDC’s issuance of its May 13th guidance, Governor Baker’s press office issued a statement that Massachusetts will not be making any changes to its mask order for now, noting that the Baker “administration welcomes the new CDC guidance and will be updating Massachusetts’ COVID restrictions in the near future. In the meantime, the current mask order remains in place.”
Then, on May 17, 2021, Governor Baker announced that he will be lifting mask mandate orders on May 29th. Therefore, Massachusetts employers should hold tight until the Baker administration issues an updated order at the end of the month to evaluate if and how to update workplace policies.
As of now, OSHA recommends the use of face coverings and adherence to protective measures in the workplace—regardless of vaccination status.1
It is unclear at this point whether OSHA will issue new guidance following the CDC’s May 13th announcement, but for now, this OSHA guidance applies.
If and when Massachusetts lifts its mask mandate for those who are fully vaccinated, there are important factors for employers to consider when making a decision about whether to omit a mask mandate in the workplace. For example:
Workplace Policies. Generally, employers should implement consistent workplace policies that do not impact certain employees differently than others. OSHA’s current guidance states that employers should not distinguish between employees who are vaccinated versus those who are not.2 Moreover, the tricky thing with COVID-19 vaccinations is that most, if not all, workplace settings will have employees who choose to, or are not able to, get vaccinated. An employee’s inability to get vaccinated may be triggered by either a disability, or by the employee’s sincerely held religious belief.
For these reasons, having 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 in the event employers have the green light to lift mask mandates (which they don’t quite yet in Massachusetts), will be to ensure that employees and clients know that they have the option to continue wearing masks, regardless of whether they are fully vaccinated—and to support such personal preferences.
Employee Morale. Employees should 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 how long the vaccine will be effective, and we do not yet know with certainty whether those who are fully vaccinated can transmit COVID-19. For this reason, employees who have loved ones at home who are unvaccinated may have concerns if employers suddenly lift mask mandates in the workplace.
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 permissible.3 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 any impermissible line of questioning that could potentially create exposure under existing laws.
Additionally, employers will need to ensure that unvaccinated employees continue to follow all required safety protocols and procedures.
Although the CDC’s latest guidance may have a significant impact on business operations, for now Massachusetts employers should adhere to the Massachusetts’ mask mandate and social distancing order. That may change at the end of the month, and we will continue to closely monitor the developments from the CDC and the Baker administration to provide helpful guidance.
Employers with specific questions are encouraged to speak with an employment attorney.
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.