Mask Mandates Are Falling – What Are Employers To Do?

On  May 13, 2021 the CDC unexpectedly recommended that, with limited exceptions,  fully vaccinated individuals can resume all indoor and outdoor activities without wearing masks or social distancing, except where required by law or workplace guidance.  Individuals are deemed fully vaccinated 2 weeks after their final dose of the vaccine.

Under the new guidance, vaccinated individuals can resume pre-pandemic activities even if other individuals in the workplace are not fully vaccinated.  In addition, vaccinated individuals are no longer required to undergo COVID-testing or quarantine after travel within the United States.

Not so fast: The collective cheers heard in offices last Thursday afternoon following the CDC’s announcement were short-lived for some jurisdictions that were following the CDC guidance.   New York, Illinois and Massachusetts are among the states that have announced that they have or will imminently lift their states’ mask and social distancing mandates for vaccinated individuals.   California has announced that it will keep the mandates in place for indoor settings outside the home until June 15th.  New Jersey’s Governor Murphy is taking a more cautious approach, stating that all workplace requirements of EO 192 (mandatory masks, social distancing, daily health screenings, sanitation of work areas) remain in effect and he has not announced any timeline for the lifting of restrictions.

Confusion in the workplace. Despite the long-awaited action by the CDC,  the varying approaches by the states in response to the CDC’s guidance for vaccinated persons has caused significant confusion among employers.  How does an employer distinguish between those who have been vaccinated and those who have not?   Are we permitted to ask employees about their vaccination status? Can we require them to get vaccinated?   Regardless of the status of the mask mandates in your jurisdiction, employers must have answers to these questions to prepare for the lifting of restrictions that have been or likely will be lifted shortly.

So what’s an employer to do?  Thankfully, the Equal Employment Opportunity Commission (EEOC) has announced that requiring employees to disclose their vaccination status is not a medical inquiry that runs afoul of the prohibitions against medical inquiries under the Americans With Disabilities Act (ADA).    The EEOC has gone one step further, announcing that employers do not violate the ADA by requiring employees to get the COVID-19 vaccine, so long as accommodations are made for those employees who object on medical or religions grounds. For those employers who mandate vaccines, the employee cannot be excluded from the workplace unless the presence of the employee poses a “direct threat” to other employees that cannot be eliminated or reduced by the implementation of reasonable accommodations (.e.g., remote working; private offices; additional personal protective equipment). Finally, the general consensus is that vaccination inquiries, without requests for additional information, do not violate HIPAA.

Even in those jurisdictions where mask and other mandates remain in effect, employers are free to require employees to show proof of vaccination.  For those jurisdictions that have dropped the mask mandates, this is necessary to ensure that those employees who are not vaccinated – and must comply with the CDC mandates – continue to do so.    For New Jersey employers and those in other jurisdictions with continuing mask and other COVID-19 mandates, the vaccination inquiry should still be made in anticipation of mandates being lifted in the near future.   The freedom from mask requirements for vaccinated employees may be the most effective incentive employers have to encourage all staff to get the vaccine.

Of course, these inquiries should be done in a confidential manner, preferably by Human Resources or another member of the upper management team.   If an employee states that they have not been vaccinated for medical reasons, the employer must refrain from asking additional questions about the employee’s medical status, but is free to require the employee to provide a doctor’s note to support the exception.   Employees who reject on religious grounds may be required to fill out a religious accommodation request form that explains the overall nature and scope of the religious objection to the vaccine.  If a medical or religious exception is invoked, employers should consult with employment counsel for assistance in implementing the required “interactive process” with the employee to determine whether reasonable accommodations can be made.   Finally, records of employees’ vaccination status can be kept for the duration of the pandemic, but should not be posted or generally shared with staff.

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