• Jackson Shields Yeiser

May Employers Safely Drop Mask Mandates for Fully-Vaccinated Employees?

Updated: Jul 14, 2021

By Paula Jackson

June 27, 2021

OSHA’s latest guidance permits most non-healthcare employers to drop mask mandates for fully-vaccinated employees unless federal, state or local laws require otherwise.[1] However, OSHA still requires employers to keep employees safe under the General Duty Clause, and, in its newest guidance, urges employers to protect unvaccinated and at-risk/immunocompromised workers such as those who may not develop full immunity from the vaccine. Protective measures include social distancing, disinfecting, installing barriers, improving ventilation, varying schedules, teleworking, temporarily excluding from the workplace exposed unvaccinated workers and all workers with COVID symptoms/diagnosis, and suggesting that customers/visitors wear masks. OSHA indicated that an unvaccinated employee is not required to wear a mask outdoors unless other laws require a face covering or the worker is at-risk/immunocompromised.

Additional protections are recommended for unvaccinated and at-risk employees in workplaces where they have a heightened risk of contracting COVID due to close contact with other employees or frequent contact with unvaccinated individuals (e.g., manufacturing plants, meat/seafood processing centers, or high-volume retail/grocery store). Other steps those employers should take include staggering break and shift-change times, placing social distance marks on floors, installing barriers, moving card readers away from employees, and stocking during non-peak hours.

In its guidance, OSHA reminded employers not to discriminate or retaliate against employees for engaging in safety-related activities, including wearing their own masks/gloves; raising concerns about unsafe conditions; or reporting COVID exposure/infection. OSHA indicated that employers should still permit all employees who wish to wear masks to do so.

Healthcare providers are subject to OSHA’s Emergency Temporary Standard, effective June 21, 2021. Among other things, this standard requires that employees wear masks or N-95 respirators, observe social distancing, and have barriers, unless they are fully-vaccinated and are in an area where they are not expected to encounter persons with COVID due to, for example, patient screening and compliance with employer safety plans.[2]

The EEOC indicated that an employer may request proof of vaccinations, but in doing so an employer must be careful not to elicit medical information about employees or their family members. For example, an employer may ask if an employee is vaccinated but not why s/he is unvaccinated. The employer should warn employees not to supply medical information about themselves or family members with the vaccination proof. Additionally, the employer must keep such information related to vaccination status in confidential records separate from personnel files.[3]

This article is for informational purposes only and is not intended to provide legal or tax advice. Receipt of or viewing information on this web site does not create an attorney-client relationship. You may contact our firm to establish such a relationship, but in any event, please consult an attorney or tax professional of your choosing for advice on this or any other legal topic.

------------------------------------------------------------------------------------------------------------------------------- [1]“Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” https://www.osha.gov/coronavirus/safework (updated June 10, 2021). For example, masks may still be required for settings like healthcare, group living, shelters, and prisons. [2]“Emergency Temporary Standard: Summary COVID-19 Healthcare ETS,”https://www.osha.gov/sites/default/files/publications/OSHA4120.pdf (last checked June 22, 2021); see also “Emergency Temporary Standard: COVID-19 Healthcare ETS,” https://www.osha.gov/coronavirus/ets (last checked June 22, 2021). [3]See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (Dec. 16, 2020); https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (Sept. 8, 2020).

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