The Modern Workplace

The Centers for Disease Control and Prevention (CDC) recently issued new guidance regarding what activities fully vaccinated people may safely engage in. The CDC stated that fully vaccinated individuals can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal or territorial laws, rules and regulations. In response to the CDC’s new guidance, the Occupational Safety and Health Administration (OSHA) added a statement to its January 2021 guidance stating that OSHA is reviewing the recent CDC guidance and will update its materials accordingly. OSHA stated that until those updates are complete, employers should refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

These updates from the CDC and OSHA open the door to employers allowing fully vaccinated employees to be in the workplace without a face mask and without social distancing. Employers navigating these updates should consider the following among other factors when deciding whether to change workplace masking and physical distancing policies:

• Make sure to check state and local laws and orders. Some states and localities may still require employers to have employees wear masks or impose physical distancing requirements. Employers should follow any such rules regardless of the CDC’s and OSHA’s updated guidance. In addition, employers should stay up to date on new laws and executive orders impacting this issue. Bills have been introduced in several state legislatures addressing inquiries regarding an individual’s vaccination status and disparate treatment of vaccinated individuals and unvaccinated individuals. 
• Consider the employer’s position on employee vaccinations and how the employer will monitor unvaccinated employees’ mask use and compliance with physical distancing requirements. As is discussed further in this Lathrop GPM alert, the latest guidance from the Equal Employment Opportunity Commission (EEOC) from December 16, 2020 strongly suggests that employers can require employees to get vaccinated. Many employers, however, have not adopted a mandatory vaccination policy and instead have taken the approach of educating and encouraging employees regarding vaccines, as well as in some cases incentivizing employees to get the vaccine. Importantly, the updated CDC guidance relates only to masking and physically distancing for fully vaccinated employees. Unvaccinated employees should continue to wear a mask and observe physical distancing requirements. It may be necessary to require disclosure of an employee’s vaccination status as part of a change in masking and physical distancing requirements, and employers should give careful thought to how that will be implemented and communicated to their workforce. One option may be to make such disclosures voluntary, meaning only employees who wish to be in the workplace without a mask and without physically distancing need to submit proof of their vaccination status.
• Consider whether removing masks and relaxing physical distancing requirements will be productive in light of the workplace culture and the comfort level of employees. How willing individuals are to return to work without masking and physical distancing requirements will vary between workplaces and within workplaces. If relaxing the requirements for masking and physical distancing will impede return to work efforts, employers may want to consider continuing at least some requirements, even for vaccinated employees. 

Even if an employer decides to eliminate or relax mask and physical distancing requirements for fully vaccinated employees, employers should make sure to communicate that individual employees may choose to continue wearing a mask and physically distancing, even if fully vaccinated, and that an individual employee’s decision to continue to wear a mask and to physically distance must be respected.

Because of the rapidly evolving patchwork of laws, regulations, rules, and guidance on these issues, an employer’s obligations under the ADA and Title VII, and the different considerations for employers, consultation with experienced labor and employment counsel is recommended as employers consider updating policies.  We will keep you up to date as additional guidance is issued.