Employment Update – Mask Requirements in Light of New CDC Recommendations by Ted Storer and Haley Brooks
For more than a year, the COVID-19 has impacted all businesses. Amid the recent vaccine efficacy and a nationwide decrease in COVID-19 cases, much of society seems to be inching closer to what was once considered “business as usual.” Nevertheless, assorted sets of guidelines on mask requirements have left many businesses and workplaces unsure as to whether or not mask requirements will remain a part of “business as usual” in the wake of the recent pandemic.
For Indiana businesses and residents, more than a month ago, on April 6, 2021, Governor Holcomb ended the State’s mask mandate. Most Indiana counties followed suit, with the notable exception of Indianapolis and Marion County. However, it is interesting to note that State, Allen County, and City of Fort Wayne buildings still require masks of its employees and for patrons visiting buildings and offices of those governmental units.
On May 13, 2021, the Centers for Disease Control (CDC) released new (and possibly unexpected) recommendations on masks. In its latest guideline, Specifically, the Interim Public Health Recommendations for Fully Vaccinated People, the CDC said:
[F]ully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
In regard to those employees and citizens who have not received a vaccination, the CDC said:
Prevention measures are still recommended for unvaccinated people.
Employers still hoped for additional guidance, likely to come from the Occupational Safety and Health Administration (OSHA). OSHA issued a statement on May 17, 2021, following the CDC’s new recommendations. The statement was brief and simply referred employers back to the CDC guidelines, with a promise to review and update its own materials.
What should a business do?
From an open market standpoint, a business needs to balance its opinions on the benefits of masks with that of its customer base to determine if it will continue to require masks for any patrons. A business can require and post a notice that customers who are not vaccinated are still asked to wear masks. Even those who are vaccinated should wear masks when physical distancing is not possible according to the CDC.
From an employment standpoint, what should an employer require of its employees?
Employers are allowed to control the terms and conditions of employment. An employer may still require employees to wear masks. Or, an employer may also allow employees who have been vaccinated to report to work without masks following the new CDC guidelines.
An employer can also require employees to be vaccinated. The EEOC rules have not changed in this respect since they were issued in December of 2020. Employers must provide reasonable accommodations for employees who have disabilities or religious grounds for not being vaccinated. An employer can ask an employee if the employee has been vaccinated, but the EEOC guidelines caution an employer from asking more details if an employee answers no.
Employers who have regular interaction with the public should be cautious about these decisions. It is likely that most employers have a mix of employees who are ready to be free from masks and others who want the apparent protection of masks, both for themselves and the customers they serve.
Based on the statements provided above, masks are no longer required in Indiana business and workplace settings. Nevertheless, businesses and workplaces retain the right to require patrons and employees, regardless of their vaccination status, to wear masks within their premises.
As more individuals continue to be vaccinated, and as COVID-19 cases continue to drop, it is likely that more guidance on mask requirements in business and workplace settings will be provided by the CDC, OSHA, and other regulating entities.
