Note: State and local laws are changing rapidly. Employers may be subject to state and local mask mandates, state and local COVID-19 workplace safety guidance, and industry-specific guidance. Local and state safety guidance is outside the scope of our services, but we recommend reaching out to your local health department or state agency to determine if any mandates apply to your business.
1. Does your state, county, or city require masks? If yes, go to #2. If no, go to #3.
2. Follow your state, county, or city mask mandates.
- You CAN be more restrictive by making more people wear masks than required.
- You CANNOT be less restrictive (at least not without significant risk)
See #4 and #6 below, which may have applicable considerations.
3. If state and local law do not require masks for anyone, employers can make rules at their discretion.
Considerations:
- The approach taken is ultimately a business decision. Involve your leaders, especially those who will have to enforce your policies, in the decision-making process.
- You may want to anonymously survey your workforce about vaccination status to assess the risk of bringing everyone back without masks (presumably, the risk of spread in the workplace would be higher if a larger population of the workforce is unvaccinated).
To require masks for all employees, go to #4. To require masks for no employees, go to #5. To allow masks off for the vaccinated, and require masks on for the unvaccinated, go to #6.
4. Policy requiring masks for everyone.
Considerations:
- Fully vaccinated employees may resent this decision
- In the short term, such a policy avoids the administrative burden of tracking who is vaccinated or not. This can buy you some time to consider whether a policy change is best for the company and how to implement any change.
- Though OSHA has deferred to the new CDC guidance, they are updating their recommendations. Some employers may want to wait until OSHA has issued their own guidance, which may be more restrictive or specific than what the CDC has provided.
5. Policy allowing masks off for all employees.
Considerations:
- You still have a general duty to provide a workplace free of hazards. The pandemic is not over and if there is an outbreak in your workplace that could be bad for both productivity and the company’s reputation and could invite OSHA penalties and oversight.
- Consider that some vaccinated employees will not be well protected, such as those undergoing cancer treatment or taking immunosuppressants.
- Consider the safety and comfort of customers and clients.
- If an employee wants to continue to wear a mask, we recommend they be allowed to do so. For employees with disabilities, or those who are immunocompromised, this will be a reasonable accommodation, and refusing to allow it would be a violation of the ADA.
6. Policy allowing vaccinated employees to stop wearing masks and requiring masks for unvaccinated employees.
Considerations:
- A policy like this will either be on the honor system or require verification. If requiring verification, that information will need to be kept confidential and should be stored separately from an employee’s personnel file.
- You should ask for the minimal amount of information necessary to verify vaccination status, such as the employee’s CDC vaccination card or copy of their immunization record. Employees should be instructed to avoid providing unrelated medical information.
- You should avoid asking employees why they are not vaccinated, as this can get into ADA medical inquiry territory.
- The employees who don’t want to wear masks, but are required to, have a right to complain about it, even publicly.
- At least one state (so far, Montana) has passed a law that you cannot treat vaccinated and unvaccinated employees differently - check for state law, local law, and Executive Orders that may apply to your organization.
