On May 13, 2021, the Centers for Disease Control issued consequential, and largely unexpected, guidance stating that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” Just a day later, North Carolina Governor Roy Cooper relied on the CDC’s new guidance to largely lift gathering limits and the indoor mask mandate for all North Carolinians, not just those who have been fully vaccinated. Meanwhile, the CDC and OSHA have not yet updated their guidance recommending the use of masks in the workplace. This has resulted in a great deal of confusion for employers.
Below, we present some of the common questions that we have been receiving from clients and our understanding of the current state of the law and guidance:
1. Can we continue to require all employees to wear masks in the workplace?
Yes. The CDC’s guidance and Governor Cooper’s executive order both include exceptions for “workplace guidance,” meaning that employers may continue to enforce a universal masking policy (subject to accommodation requests). Given that OSHA has yet to change its guidance for employers and the CDC has not yet explained how its guidance should apply in the workplace, some employers are choosing to maintain the status quo until more information becomes available.
2. Can we allow fully vaccinated employees to enter the workplace without a mask but require unvaccinated employees to continue masking?
Yes. The CDC’s guidance clearly provides that masking is no longer necessary for fully vaccinated individuals except in limited situations. North Carolina, for example, still requires masking in healthcare settings, child care facilities, public transportation, correctional facilities, and schools. Businesses that are not covered by any remaining mask mandate may therefore allow vaccinated employees to work without a mask but still require unvaccinated employees to mask. While such policy could invite claims of discrimination by unvaccinated employees, employers would have strong arguments against such a claim.
3. What information can we request from employees about their vaccination status?
The EEOC has stated that requiring an employee to disclose their vaccination status is not a medical inquiry under the ADA and is permissible. Employers may also legally request proof of vaccination, such as the CDC-issued vaccine card. However, employers must be careful not to request additional information, such as an explanation of why an employee has not received the vaccine, to avoid running afoul of the ADA.
4. How can we enforce a policy which lifts masking requirements for vaccinated employees?
Employers may require proof of vaccination, such as the CDC-issued vaccine card, before allowing employees to enter the workplace without a mask. Alternatively, employers might choose to adopt an honor system and allow employees to self-certify whether they have been vaccinated.
Vaccination status is unlikely to constitute a “confidential medical record” under ADA regulations. Therefore, such information can likely be shared with supervisors who can more efficiently ensure compliance with the policy. Employers may also consider providing employees who voluntarily disclose that they have been vaccinated with a badge, sticker, or other identification exempting them from workplace masking requirements.