In a move that caught even health care professionals off guard, the US Centers for Disease Control and Prevention (CDC) last week announced lifting the mask mandate for vaccinated individuals. In its guidance, the federal agency noted that if you have been fully vaccinated, “you can resume activities that you did prior to the pandemic.” But before you get excited and trash your mask, you should know that the CDC notes that this is the case “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”
Which brings us to the topic at hand: How should you, as a business owner, lift your own mask requirement? If you’re client-facing or in a customer service role, when should you let your customers ditch the mask? And when can your own employees leave their masks at home?
Although we’ve been battling COVID-19 for well over a year, so many facets of the global pandemic, including how to emerge from it, remains unchartered territory. Thus, business owners are left to fend for themselves and forge their own paths forward. In determining your own response to the new CDC guidance, we offer the following points for consideration:
Take it to the top
In terms of pandemic response, we have largely turned to federal agencies to give us an overarching view of what we should be doing, but the decision about mask mandates has largely been made at the state level. Some states, including Alaska, Florida, and Georgia, never required masks at any phase during the pandemic, whereas other states, including Alabama, New Hampshire, and Texas, have led the charge on repealing their mask mandates. In general, where there is conflict between federal, state, and local rules, employment attorneys will typically recommend that you follow the highest-level guidance. Now that the federal government is on board with lifting the mask mandate, you can defer to your state, county, or even city for their guidance and work your way down from there to determine the best path forward for your business.
Rely on your tried and true
Whenever an issue of workplace safety arises, we always like to turn to the Occupational Safety and Health Administration (OSHA). This offshoot of the Department of Labor is tasked with ensuring that all employers provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Certainly, COVID-19 falls under that umbrella, and OSHA for its part has been very vocal about the steps that employees should take to protect their workforce, including but not limited to wearing a mask. Further, should a COVID-19 outbreak occur at your business, Devjani Mishra, an attorney with Littler in New York City, warns that the agency will want to know what safety measures the business had in place at the time of the incident. With the CDC guidance being so new, OSHA has yet to issue a formal recommendation about how employers should proceed. Some states have their own OSHA divisions with their own unique COVID-19 frameworks but we would recommend keeping an eye out for revised guidance and again following that top-down approach as you navigate your own rules. Per OSHA rules, state plans must be “at least as effective” as the federal program in order to pass muster should an investigation ensue.
Consider your audience
When we say audience, we mean both your staff and your customers. Healthcare facilities and schools have both been ruled exempt from the lifting of mask mandates, simply because they house sick or unvaccinated populations, respectively. If your business frequently deals with groups that are likely to be unvaccinated, such as children or the immunocompromised, we would recommend that you take that into consideration. The New York Times also highlights CDC data suggesting that vulnerable populations including minorities and those in low socioeconomic groups may lag their peers in terms of getting a vaccine, so you might want to consider your business’s interactions with these groups as you craft your own policy. Current statistical models suggest that approximately half of all eligible Americans will be vaccinated by the end of May, but this figure fluctuates significantly by states and some localities may struggle to reach this milestone even by the end of the year.
Sadly, the pandemic is still far from over. In fact, the most recent seven-day average for COVID cases as reported by the CDC was just over 35,000, which while down significantly from its peak, is still a worryingly high number of cases. Therefore, any business that determines that it is time to ditch the mask should be open to revisiting the policies should cases rise or federal agencies determine that they are still warranted. In terms of how to word such a policy to your employees and customers, you could simply note that your decision regarding mask-wearing is based on currently available data and is subject to change.
Many folks felt blindsided by the CDC’s decision and would have preferred to have a timeframe for lifting the mask mandate so that they had more time to prepare a plan forward. However, folks will be looking to you, as a business owner, for guidance on what your expectations are. As we touched on above, it’s okay not to be able to commit to a long-term mask plan, but you should still set clear policies and make sure you communicate them effectively to your employees. Start by explaining how your business plans to move forward with mask-wearing and note how you expect your employees and customers to behave. In addition, you should make employees aware that you are willing to explore the reasonable accommodation process should they have a medical or other legally protected reason to ditch the mask. Should your stance change, be sure to provide updates to all and include your reasoning behind the decision where applicable so that employees and customers can better understand and incorporate the change.