Can Employers Follow CDC’s “Vaccination or Mask” Rule?


[clear]Employers subject to state-level COVID-19 workplace safety standards are wondering what the CDC’s recent “vax or mask” rule means for them. Virginia, for example, is one of a handful of states with a state-level workplace safety agency, as are California, Michigan, and some others. OSHA partially addressed the issue from a federal perspective on May 17. Then late Wednesday, May 19, Virginia’s Department of Labor & Industry posted new FAQs on the topic. These developments have answered some questions, but raised new questions, too.

In this article, we’ll focus on the situation in Virginia, which was the first state to create its own COVID-19 workplace safety rules, to give an example of how employers reckoning with fast-developing state and federal rules should think about proceeding. If you have employees in several states with such plans, you’ll need a multilateral analysis. Discuss an appropriate plan with counsel as this situation continues to develop.

The guidance from state and federal actors is confusing. In all the excitement over Virginia’s new FAQs based on CDC guidance, for example, Virginia employers should remember that they are not the formal product of a rule-making process. If state-level actors comparable to Virginia’s DOLI—like Oregon OSHA—address their state-level plans in the same way, there would be similar concerns.

Even though there is some uncertainty around the impact of these FAQs on Virginia’s Final Permanent Standard (FPS), they nonetheless indicate DOLI’s enforcement priorities. Employers should pay attention to the difference between those entities that can issue citations (like Virginia’s DOLI) and those that cannot (like the CDC) to try to predict which way the enforcement winds will blow. Employers must still follow all applicable state-level rules, but some responsible agencies have indicated their focus will be more on masks and vaccinations than, say, cleaning surfaces, which may have been an enforcement priority early in the pandemic.

Many employers are welcoming these developments because vaccinated people who can unmask in their private life according to CDC understandably don’t see why they shouldn’t also be able to unmask at work. One of the new Virginia FAQs seems to allow many covered employers to follow CDC’s mask guidance, with notable exceptions for workers in the healthcare, transportation, and education sectors. Virginia employers relying on this FAQ may allow vaccinated employees to unmask, but it’s not required. And any Virginia employer can choose to require masks for all employees, regardless of their vaccination status.

Perhaps the most notable component of the Virginia FAQs is what appears to be a “safe harbor” where employers can avoid a mask citation from DOLI if an “unvaccinated and unmasked” employee exposes a vaccinated co-worker. Unfortunately, no such “safe harbor” exists if the exposed employee is unvaccinated. DOLI has considerable discretion when issuing or not issuing citations, so this is significant. Before relying on this rule to develop policy, talk with counsel as it is among the most impactful aspects of Virginia DOLI’s FAQs. Remember, you must have clear masking rules in place to use the established “employee misconduct” defense, which essentially allows an employer to defend a citation by showing that an employee, not the employer, was the rule-breaker.

Don’t ignore the interplay of these state-level rules with federal law. Employers have been navigating these regulations in a variety of settings during the pandemic, notably the Americans with Disabilities Act, Title VII, the National Labor Relations Act, and OSHA. Whatever their decision for vaccinated employees and masks, Virginia employers in any sector must still require unvaccinated employees to continue masking for the time being. Finally, employers continue to have the “general duty” to keep their workplaces safe.

If an employer chooses to allow vaccinated employees to unmask because of these new FAQs, leaving unvaccinated employees wearing masks, then the Human Resource manager’s internal alarm should be going off: “Employees are being treated differently!” Even worse, there could be protected reasons that the employee is unvaccinated, like disability (ADA) or religion (Title VII). In other words, there could be a disparate impact.

Decision-makers need to show any “unmasking” policies result from a legitimate, non-discriminatory business reason, not from any discriminatory animus. Every workforce is different, so please contact us for advice specific to your workplace. In the meantime, we have a few general suggestions on how to best administer a partial workforce “unmasking”:

  1. Don’t use an honor system. DOLI recommends knowing, rather than guessing, if employees are vaccinated, and documenting the answer before letting them unmask. You’ll need to know who is vaccinated.
  2. Remind managers and employees that teasing or harassing someone about their vaccination status or for wearing a mask could create a hostile work environment. It could also create an undesirable hierarchy where unvaccinated employees feel looked down upon unfairly. Remind employees that such behavior is banned, that you need to know about it to address it, and refer them to your complaint procedure. You also need to remind your managers to be on the lookout for bad behavior, and never to engage in it themselves or “let it slide.” A policy is only a policy if it is enforced. Once your supervisor knows about illegal behavior, the company does too and liability can attach.
  3. Be thoughtful when talking to employees about their vaccination status. The EEOC cautions employers asking employees why they are or aren’t vaccinated to be aware that those questions would be subject to the pertinent ADA standard that disability-related inquiries be “job-related and consistent with business necessity.” The follow-up questions might elicit ADA-protected information about an employee’s disability. An employee might volunteer a religious objection, in which case you might find yourself needing to engage with them about a religious accommodation of some sort under Title VII. If an employee has asked for a religious accommodation, you’ll need an objective basis for questioning the religious nature or sincerity of the employee’s belief, observance, or practice before seeking supportive information. Whoever is asking employees about their vaccination status should have a plan for common issues: “Should I ask to see the vaccination card? What if they refuse to answer? What if I think they are lying?” There are right and wrong responses to these situations. They should have proper documentation in hand and be ready to store it in accordance with applicable privacy laws.
  4. Employers should understand COVID-19 is not going away and neither are pandemic-era employment laws like the FFCRA. The American Rescue Plan Act provides for an extension of FFCRA under certain circumstances. Employers who have opted-in will need to continue administering protected FFCRA leave even if, for instance, vaccinated employees contracted COVID-19.

Navigating these new laws, regulations, and recommendations can be overwhelming. Woods Rogers Labor & Employment attorneys are available to offer guidance to employers on these issues. We will be glad to help you assess how these developments apply to your workforce.


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