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End of the Mask Mandate?

By June 14, 2021Newsletter

Are we seeing the end of COVID-19 mask mandates? 

Maybe, maybe not. 

The end of some states’ mask mandates does not necessarily mean employers should ease up on safety protocols. 

As of June 7, 24 states had eased or ended mandatory local mask mandates. However, that does not mean employers in those states, or any state, should rush to eliminate mask wearing policies for their employees and visitors. Each organization has the right to set rules and regulations for what is expected within their own organizations, and for some, that may include requiring their employees and visitors to continue to wear a mask and stay physically distant even if employees have been vaccinated. 

What should you do? 

While many of us may be tired of staying physically distant, wearing masks, and washing our hands many times a day, the pandemic is not over. Even as we draw closer to a life with COVID-19 in the rearview mirror, not everyone is going to be ready to forgo the protections and practices we’ve become accustomed to. It is critical to be sensitive to your employees’ anxieties and any reluctance to return to the physical workspace.   

OSHA and state-run safety organizations have signaled their intent to conduct COVID-19 inspections in the upcoming months, so now is not the time to let up on safety protocols. However, with the new CDC guidelines on vaccinations and masks, and OSHA releasing a response, you may have soon some options regarding the wearing of masks and physical distancing protocols in your organization. 

In the meantime, one option you have is to support your employees who choose to become vaccinated. You can provide paid time off to obtain vaccines and time off if they experience any side effects. The Families First Coronavirus Response Act (FFCRA) is still available if you wish to provide time off and receive the payroll tax credit. It is not mandatory. Each organization can decide if they will take advantage of the opportunity. Whatever you do, ensure that you do not pick and choose which employees can avail themselves of the time off. You must be fair and consistent in your practices to stay out of court (and do the right thing), so make sure all employees have equal opportunities for whatever you provide. 

Throughout the country there are a wide range of regulations regarding mask mandates, and many locations are beginning to lift the mask mandate for those who have been vaccinated.  If your workplace is in an area that is lifting restrictions, but still requires unvaccinated staff to wear masks, you have three choices, and all carry some level of risk: 

  • Mandate masks: The first choice carries the least level of risk. This option is to require your employees to continue wearing masks and to maintain 6 feet of physical distance with others. This would apply to all employees, vaccinated or not.  This meets health mandates and avoids segregating employees by their decision regarding vaccination, but may frustrate employees who have been vaccinated and would like to go unmasked in the workplace.
  • Vaccination Proof: The second choice carries more risk than the first. Under this option, you would ask your employees to provide proof of their vaccination.  Vaccinated employees would not be required to not wear a mask and maintain physical distance from others. If you decide to go this route, you must keep in mind that the less you know about an employee’s health and possible disability information, the better. Anything you do learn must remain confidential and within an employee’s medical file which is kept separate from their personnel file. A best practice is to keep a list of employees who have received the vaccine and not to make and keep copies of their vaccination documents.
    • Other issues arise with this route, such as possible discrimination, harassment, and bullying if and when other employees find out some of their co-workers may be unvaccinated. You must ensure a safe and harassment-free workplace for all employees, regardless of their vaccination (or any other) status.
  • Honor System: Your third choice is to trust your employees using the honor system. Instruct them that if they have not been vaccinated they are required to mask, but do not ask for proof of vaccination. If you chose to not track who has or has not been vaccinated, it is possible that unvaccinated employees may choose not to wear a mask, and could risk employees being exposed to infection.  This could mean that your organization is not ensuring your employees have a healthy, safe workplace under current OSHA mandates. 

In summary, the situation regarding mask mandates is currently in flux, and we must be nimble in our daily work lives, as we may need to change our policies and practices at a moment’s notice. 


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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.

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