As companies of all types and sizes continue to deal with the potential legal implications of the COVID-19 pandemic for their businesses, Jackson Walker provides insights and resources on the COVID-19 Legal Resources & Insights site.
On Thursday, May 13, CDC Director Dr. Rochelle Walensky stated that fully vaccinated people in the U.S. can resume activities, both inside and outside, without having to socially distance or wear a mask. Before returning to pre-pandemic behavior in the workplace, Jackson Walker Labor & Employment attorneys Gary Fowler, Sara Harris, and Brooke Willard discuss some key issues for employees and employers to consider.
Greg Lambert: Hi, everyone. I’m Greg Lambert, and this is Jackson Walker Fast Takes. On Thursday, May 13th, CDC Director Dr. Rochelle Walensky stated that fully vaccinated people in the United States can resume activities both inside and outside without social distancing and without a mask. As with anything that’s transformative in our daily lives, there are issues which both employees and employers need to address before everyone can just go back to pre-pandemic behavior in the workplace. So, I asked Jackson Walker Labor & Employment attorneys Gary Fowler, Sara Harris, and Brooke Willard to give us their view on what we need to think about before just dropping the masks at work.
Gary, I’ll start with you: Can we just drop the mask and go back to normal?
Gary Fowler: Well, Greg, I think there are several things that employers should consider before rushing out and dropping mask requirements, and particularly dropping those requirements in their entirety.
First of all, and most notably, this only applies to fully vaccinated persons. Now, fully vaccinated persons or persons who have received two doses of the Moderna or Pfizer vaccine or the one dose of the Johnson & Johnson vaccine and two weeks thereafter from the last shot. So, this only applies to fully vaccinated persons for employees.
Secondly, certain industries continue to have a mask requirement. For example, the CDC guidelines talked about the recommendation for all healthcare facilities, doctor offices, hospitals, nursing homes, to continue a mask requirement in place. Public transportation, airplanes, subways, buses, all of those will continue to have a mask requirement for employees and for customers. And third, those employees who work in particularly crowded conditions—the CDC guidelines mentioned prisons and homeless shelters.
There’s also the importance of looking at your state and local guidelines and regulations, because the CDC guidelines were careful to state that those remained in place.
Greg Lambert: Well, Sara, while the CDC made this particular statement, the labor and employment groups usually look towards agencies like OSHA, when it comes to workplace rules. So, what are the OSHA guidelines at this time?
Sara Harris: Sure, Greg. That has been a big question since the CDC guidance came out last week. What will OSHA do in light of this new, more relaxed recommendation? As of today, we have some indication on that. Today, OSHA put on its guidance page dedicated to the recommendations for protecting workers from COVID-19 in the workplace a statement that says OSHA is reviewing the CDC guidance and will update its materials accordingly. I think most notably is this statement – OSHA says that “until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” I think this statement probably helps reduce some of the tension between the OSHA guidance that was issued back in January, which emphasized the importance of masks in the workplace for all workers, vaccinated or not, and the new CDC guidance. So it remains to be seen what OSHA does and how much their guidance will mirror the new CDC recommendations, but I suspect we’re going to see some of those guidance points regarding all workers continuing to follow protective measures of mask wearing probably fall away. That said, certainly, I think we can expect many of OSHA’s recommendations to stay in place – the obvious, common sense ones of have good ventilation, washing hands, and social distancing where possible. Likewise, OSHA, like the EEOC recommends, taking separate and additional precautions for workers who are at higher risk of severe illness and protecting employees with disabilities by providing reasonable accommodations, you know, whether that’s allowing them to work from home or in a separate alternative workspace that has fewer employees coming in and out – those sorts of things. Hopefully, we’ll see something soon from OSHA.
As Gary mentioned, in the line of state and local authorities shifting guidance as well, we’ve seen the State of Texas has now also indicated they’re in the process of updating their guidelines and checklists for employers and businesses. Hopefully this week, we’ll know more on that front. But until then, prior guidance from the State of Texas continues to be relevant, and we’ll watch for updates.
Greg Lambert: Brooke, the CDC statement, as Gary had mentioned earlier, says “fully vaccinated people.” Not everyone is fully vaccinated, and there could be multiple reasons for that. So, if I’m an employer, how can I verify which of my employees are fully vaccinated?
Brooke Willard: Well, employers may require employees to show proof of receipt of a COVID-19 vaccination. For instance, a photo or scanned copy of the employee’s vaccination record card. Simply asking for proof would not violate the Americans with Disabilities Act. However, employers should not ask follow-up questions that encourage the employee to provide more medical information. So, asking why an individual did not receive a COVID-19 vaccine could violate ADA’s restrictions on medical inquiries. Of course, upon receiving this information – the proof of receipt of the COVID-19 vaccine – the employer should make sure to keep such records secure and confidential.
Greg Lambert: What other policies should employers review as we transition to this new phase of what appears to be this winding down of COVID restrictions in the workplace?
Gary Fowler: One thing, I think, this relaxation of the guidelines was intended to do was to encourage people to be vaccinated. And I think employers can encourage their employees to consult with their doctors and be vaccinated, provided that they don’t have a medical or bona fide religious reason for not doing so.
Employers may also, at some point at least, want to look at mandatory vaccination policies. As we’ve discussed in a prior podcast, employers need to consider whether to do that while we’re still under the emergency use authorization by the FDA. And before the FDA certifies any of the vaccines, it’s being fully safe and effective, which is a much more rigorous test. One thing employers may wish to consider, but probably should consult with counsel on is a combination of a policy with regard to unvaccinated employees potentially being tested for COVID once or twice a week or for whatever period of time now, that probably wouldn’t be a medical inquiry probably meets the standards that EEOC has put forward, but it’s something to consider but should be considered carefully particularly given an employer’s particular workplace. I think employers need to look at this in light of how many employees they have, how many have been vaccinated or not vaccinated? How much contact Do they have with the public? And also how are employees and customers going to react if employees don’t wear a mask? Finally, as a last point, employers should make clear that no employee will be retaliated against for suggesting a stricter safety standard or inquiring about safety standards that’s protected not only under OSHA’s anti retaliation clause, but also Section seven of the National Labor Relations Act for both unionized and non-unionized employers.
Sara Harris: On that point, in terms of unionized employers, any employer that is deterring implementing new or different guidance should certainly consult with the union leadership to discuss and negotiate that upfront rather than deal with implications on the back end.
Greg Lambert: Gary Fowler, Sara Harris, and Brooke Willard, thanks for taking the time to explain the CDC guidelines when it comes to mask and the workplace.
The music is by Eve Searls.
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Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.