What CDC's Relaxing of Mask Rules Means for Workplace Vaccine Mandates

Author: David B. Weisenfeld, XpertHR Legal Editor

May 18, 2021

The Occupational Safety and Health Administration (OSHA) is advising employers to refer to last week's guidance from the Center for Disease Control and Prevention (CDC) that fully vaccinated individuals may stop wearing masks or maintaining physical distance in most settings.

OSHA added a banner today to its website noting that it is reviewing the recent CDC guidance and will update its materials accordingly. Until those updates are complete, the agency said, "Please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers."

Under the CDC guidance, fully vaccinated people can:

  • Resume activities without wearing masks or physical distancing, except where required by federal, state or local laws, rules and regulations, including local business and workplace guidance;
  • Resume domestic travel and refrain from testing or self-quarantine before or after travel;
  • Refrain from testing before leaving the US for international travel (unless doing so is required by the destination country) and refrain from self-quarantine after returning to the US;
  • Refrain from testing following a known exposure if the individual is asymptomatic, with some exceptions for specific settings;
  • Refrain from quarantine following a known exposure if asymptomatic; and
  • Refrain from routine screening testing if feasible.

As noted, employers are free to maintain more stringent restrictions than the CDC's safety recommendations. And Faegre Drinker employment attorney Stacey Smiricky suggests that might not be a bad idea.

"Removing mask requirements may make employees uneasy," said Smiricky. "An employer should determine the employee population's comfort level with removing mask requirements prior to taking any action."

Ogletree Deakins employment attorney Kathy Dudley Helms added that employers can require employees to wear uniforms, so they certainly can do so with masks. "Employers are trying to get people to come physically back to work so that's part of this too."

Nonetheless, she observed that despite the answers that the CDC and OSHA have provided employers, many questions still remain. For instance, Dudley Helms said there would be a possible need for accommodations, and whether remote work remains a reasonable accommodation is not clear.

"We're in a transitional period right now and a lot of businesses are trying to figure out how to handle it," Dudley Helms noted. "If you've got a small office with not a lot of people coming and going then it's fairly easy to say 'no masks'. But in large retail stores, for example, it's not so easy. You're basically on the honor system [regarding whether an employee is vaccinated]."

The Equal Employment Opportunity Commission (EEOC) has said that employers generally can require employees to be vaccinated. Delta Air Lines recently announced it will become the first airline to require new employees to be vaccinated against COVID-19. However, Delta will not impose the same requirement on current employees.

For her part, Smiricky cautioned against mandating vaccines as opposed to simply recommending them. "If mandated, it may open an employer up to disability and religious accommodation issues to be addressed," said Smiricky. "In addition, they would need to compensate employees for the time to get vaccinated."

She also noted that some states are considering legislation to prohibit employers from mandating vaccines or asking employees about their vaccination status. "Unless an employer has a compelling reason to mandate the vaccine, most companies are taking the approach of strongly recommending them and providing information about the vaccines and where they are available," said Smiricky.