As an increasing number of Americans become vaccinated against COVID-19, cases across the country are plummeting. In fact, the most recent news is particularly encouraging: as of this week, coronavirus cases are down in every state in the country—this for the first time since the pandemic began.
Approximately 60 percent of individuals in the U.S. have already rolled up their sleeves and received at least one shot. With that, severe illness and hospitalizations are also in steep decline. In response, the Centers for Disease Control and Prevention has updated its guidance, having recently announced that, in most cases, fully vaccinated Americans no longer need to wear masks indoors or outside.
The CDC’s move has left some employers unsure about what they should do in terms of mask wearing at their particular workplaces. This is especially true in light of state law mask mandates that have yet to be lifted.
OSHA Punts, at Least for Now
For its part, the Occupational Safety and Health Administration, which is tasked with ensuring safe and healthful working conditions for workers nationwide, is “reviewing the recent CDC guidance and will update [its] materials . . . accordingly.” Meanwhile, OSHA suggests employers and workers consult CDC guidelines for information “on measures appropriate to protect fully vaccinated workers.”
Again, CDC guidance now tells us that fully vaccinated people can live their everyday lives without masks (with some exceptions, such as when on public transportation or in health care facilities) in the absence of any laws, rules or other government workplace guidance to the contrary. Of note, the CDC also reports that individuals that are fully vaccinated no longer need to physically distance.
The EEOC’s Position on Masks . . . and Vaccines
The U.S. Equal Employment Opportunity Commission is following OSHA’s lead. The EEOC website states that it too is considering the impact the CDC’s updated guidance has on COVID-related advice it has already issued.
Parenthetically, the EEOC has opined that asking whether employees returning to the workplace have been diagnosed for, have symptoms of, or have been vaccinated against COVID-19 is lawful. According to the agency, such queries are not “disability-related inquiries or medical examinations.” The EEOC has also stated that employers can exclude the unvaccinated from workplaces if they determines these individuals pose a threat to others.
The Takeaway
As we await definitive word from OSHA regarding masks in the workplace, it is clear the agency is interested in a consistent governmental message, which is why OSHA looks to be aligned with the CDC. That being said, it is important to understand that neither the CDC’s recent announcement nor OSHA’s ultimate position pertaining to mask mandates in any way alters an employer’s right to require that masks be worn by those who are unvaccinated or to demand that its workforce be vaccinated as a term and condition of employment.
As always, Michelman & Robinson’s employment law specialists are available to answer any of your COVID-19-related questions.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.
