As IMA members are aware, the Centers for Disease Control and Prevention (CDC) issued guidance on May 13 stating that fully vaccinated employees are no longer required to wear a mask indoors or outdoors except as required by other federal, state, or local laws and regulations, or where it is required by the employer. Illinois followed suit with Governor JB Pritzker issuing a new Executive Order mirroring the CDC recommendation and most local governments took similar action.
While this announcement was welcomed by employers, it created an immediate conflict with the Occupational Safety and Health Administration’s (OSHA) non-mandatory guidance that was issued on January 29. The OSHA guidance
, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” called for mask wearing in the workplace. Proposed rules are working through the process in Washington D.C.
This week, OSHA updated their guidance to answer the question of whether fully vaccinated employees need to wear face coverings consistent with the OSHA January 29 guidance. The answer is NO - fully vaccinated individuals do not need to wear masks in the workplace. On the OSHA website, the agency advised that they are reviewing the recent CDC guidance and will be updating their materials. In the meantime, employers should follow the CDC’s recent guidance for masks.
This new update from OSHA allows fully vaccinated workers to stop wearing masks in the workplace. However, employers need to ensure that there are no local mask ordinances still in effect.
According to our partners at Conn Maciel, a risk of liability remains under the OSHA General Duty Clause that requires employers to provide a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Liability could potentially occur if the employer does not make reasonable efforts to verify an employee’s vaccination status. The law permits employers to ask about vaccination status (yes or no) and to request proof of vaccination. However, employers need to be cautious about how they make this inquiry so that it does not violate the Americans with Disabilities Act or other labor laws.
If an employee refuses to answer the question or declines to get the vaccine or demonstrate that they have been vaccinated, the employer should not consider that employee to be fully vaccinated. Employees who are not fully vaccinated are required to wear masks and socially distance.
The recent guidance from the CDC, along with OSHA’s statement this week, allows fully vaccinated employees to stop wearing masks. However, employers may wish to refrain from updating their workplace policies until OSHA officially updates all of their materials on the website which we expect will occur in the very near future.
The IMA will continue providing general updates to our members as additional guidance becomes available. If you have specific questions, please let us know or contact legal counsel.