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CDC Eases Mask Mandate Post-Vaccine: Job Impact Explained (1)

May 17, 2021, 9:30 AM; Updated: May 17, 2021, 6:52 PM

Many employers are reassessing their Covid-19 safety protocols after federal health officials issued more permissive masking guidelines last week, a major milestone in federal pandemic policy that quickly prompted shifts among the states.

The U.S. Centers for Disease Control and Prevention modified its recommendation for wearing face coverings in public settings to say that fully vaccinated Americans can largely go without masks. People should still wear them while flying on planes, riding public transportation, and visiting health-care facilities regardless of vaccination status, the CDC said.

1. Can companies drop employee mask mandates?

That depends on where a company is located. The CDC’s stance on masks is just voluntary guidance and doesn’t affect the mandates that apply to at least some workers in 26 states, Washington, D.C., and Puerto Rico as of Sunday, according to law firm Littler Mendleson’s list of mandates. And many cities and counties have their own requirements, including in states without mandates.

A handful of states announced partial or total rollbacks of their requirements in the wake of the CDC’s guidance, some of which are pending, including California, New York, Ohio, and Virginia. More states, as well as local governments, likely will revisit their rules in the coming weeks.

At the federal level, the Occupational Safety and Health Administration said Monday that employers should follow the CDC’s guidance for fully vaccinated workers.

2. Can companies require vaccination proof?

Most likely, yes. Legal restrictions on disability-related inquires—which can be triggered by an employer’s questions about a worker’s health—don’t apply to requests for proof of inoculation against Covid-19, according to the Equal Employment Opportunity Commission.

But going beyond vaccination status—like asking why a worker didn’t get vaccinated—could be the type of disability-related inquiry that employers are only allowed to pose if it’s job-related and consistent with business necessity. The Americans with Disabilities Act also requires that records of vaccination status must be kept confidential.

3. Can companies impose vaccine-related rules?

Yes, employers generally have a free hand to impose rules related to vaccinations under the at-will employment doctrine, which is in place in 49 states and allows companies to fire workers for any legal reason.

That means employers can require workers to get vaccinated as a condition of employment, provided they make accommodations for those employees who can’t get the shot for medical or religious reasons. That same leeway likely permits companies to staff certain positions or shifts based on whether a worker is vaccinated, with the same caveat about disability and religious issues. But some policies that don’t violate the law can still upset workers and prove difficult to enforce, potentially making them more trouble than they’re worth.

4. What about customer mask mandates?

Several large companies, such as Walmart Inc., Costco Wholesale Corp., and Starbucks Corp. said that they’re shedding their mask requirements for customers after the CDC issued its new guidance. The shift on masks could encourage people to go without face coverings in stores, restaurants, and other public-facing businesses. Meanwhile, the U.S. lacks a nationwide vaccine passport system to confirm whether people have gotten the jab.

A more mask-reluctant public seems certain to put more workers in the position of asking customers to cover their faces. But workers have little legal guarantee that their employers will protect them from verbal abuse or physical violence in confrontations with angry anti-mask customers.

Workplace safety law likely doesn’t cover mask-related tirades, though employees who are physically hurt can seek workers’ compensation payments. But most state workers’ compensation systems don’t cover emotional distress. Federal anti-discrimination laws could provide workers with some protection, since they require employers to shield their staff from customer harassment that’s based on race, sex, or other protected categories.

To Learn More:

Why Covid-19 Vaccines Can’t Be Silver Bullet: Immunity Explained

Can Your Boss Force Your Vaccination? Employer Mandates Explained

Covid-19 Vaccine Mandates at Work Promise Employer Headaches

No Mask, No Service Rules Leave Workers Open to Customer Abuse

Big Tech Unleashes Vaccine Passports as Privacy Questions Loom

(Updated to reflect OSHA and state announcements.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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