Working Together

On May 13, 2021, the Centers for Disease Control (“CDC”) released updated guidance stating that wearing masks and physical distancing by those fully vaccinated is no longer necessary, even inside, unless required by federal, state or local laws, guidance, or regulations, including policies implemented by businesses and workplaces.   Hours later, Governor Lamont announced that the state-issued indoor mask requirement for vaccinated people would be dropped by May 19 in most public settings.

Yesterday afternoon, May 17, the Governor clarified that a new set of COVID-19 safety protocols regarding the use of face masks would be implemented in Connecticut beginning tomorrow, Wednesday, May 19, aligning the state’s guidance with the CDC’s updated recommendations. 

The new state protocols will no longer require vaccinated people to wear masks indoors but will continue to require unvaccinated people to wear them.  Despite these new protocols, businesses may still choose to require universal masking as they see fit, including for customers, employees, or both.  Masks will still be required in certain settings such as healthcare facilities, facilities housing vulnerable populations, schools, and childcare centers among others. In addition, the Connecticut Department of Public Health will be issuing revised recommendations and considerations for masks in businesses and other settings.

So what does this all mean? Is it ok to lift your mask mandate now, or are there other considerations or rules prohibiting you from doing so? How do you respond to employees or customers stating that they no longer need to wear a mask indoors?

While the recent announcements and guidance certainly seem to suggest we may be heading toward mask-free workplaces at least for the vaccinated in the near future, it’s not time to remove those masks just yet.  There are still several open questions employers need addressed from the state and federal government before they should consider eliminating the mask requirement for vaccinated employees in the workplace, let alone the mask requirement altogether. There are also several business and workplace specific issues employers should evaluate prior to making the decision to eliminate masking requirements for vaccinated employees and customers.

From a state and federal law point of view, we should have considerably more guidance on masking and other revised safety protocols from Governor Lamont in the coming days.  We also expect that OSHA may revise its guidance to more closely align with the CDC’s updated recommendations. As of this morning, OSHA had not updated its guidance but has indicated it is evaluating the new CDC recommendations and plans to update its materials once its review is complete. Employers will need to be sure to follow any state or federal requirements as updated once finalized.

Additionally, employers should consider their particular employees, company operations, philosophy and comfort level with permitting vaccinated employees and customers to be indoors without masks. This assessment should include an analysis of how many employees of the total workforce are vaccinated versus unvaccinated. Employees who are not vaccinated will likely need to continue to wear masks and observe certain safety precautions that vaccinated people will not, which could create some friction and morale issues amongst employees. On the other hand, the “privilege” of not having to wear a mask at work may serve as an incentive for more employees to be vaccinated. How employers should advise their customers and guests about their vaccination and mask policies going forward will also pose some interesting issues, as will verifying a customer’s vaccination status before entry onto the premises without a mask.  

Finally, businesses should consider implementing a written workplace COVID-19 vaccine policy if not already implemented, and/or revising it to address the new federal and state guidance and rules once they are finalized.  Putting your vaccination policy in writing makes expectations regarding vaccinations and expected proof of vaccination status clear to everyone.  While some employers may not have been overly involved in asking employees about vaccine status or accepted an employee’s verbal confirmation in the past, many businesses will likely want to consider having employees submit a copy of their vaccination card as proof of vaccination before permitting an employee not to wear a mask. Implementing or updating your policy will also let employees who are “on the fence” about receiving the vaccine know that they will need to continue to wear masks at least for the time being and observe other more restrictive safety protocols than their vaccinated co-workers.

While there are still many outstanding questions, the new CDC guidance and the Governor’s loosening of restrictions are clearly a good sign of a return to some sense of normalcy.   Evaluating and tracking what percentage of your workforce is vaccinated now, and your anticipated stance and approach to policies going forward, will enable you to decide what approach works best for your workplace once we have more guidance from federal and state authorities.    

Please contact a member of our Labor and Employment Department with any questions. Our attorneys have been working closely with employers to explore and evaluate these types of issues and can assist you in determining what type of policy is the best fit for your workplace. We have also developed model vaccine policy templates which we can easily conform to address the unique needs of your business.