On May 13, 2021, the U.S. Centers for Disease Control and Prevention (the “CDC”) announced that fully-vaccinated people no longer need to wear masks in many indoor or outdoor settings. Coming after more than a year of mask mandates from several levels of government, the lifting of the mask mandate is causing many employers to question whether or not they should continue to require customers, clients, and/or their employees to wear masks in the workplace. Here are the top considerations for employers to consider for their mask mandates going forward:

  • Can employers still require vaccinated employees to wear masks? Yes. Employers can mandate that vaccinated employees continue to wear masks in the workplace, even in light of the CDC’s new guidance. If an employee refuses to wear a mask in violation of the employer’s requirement, the employee may be disciplined (unless the employee’s refusal is based on a protected classification, such as a disability/religion that prevents them from wearing a mask).

  • What does the state or local government require? The CDC is a federal agency that many state and local governments have looked to as the standard in COVID-19 related practices and requirements. While state and local governments may follow the CDC and lift the mask mandate, Massachusetts has not yet done so. Accordingly, if Massachusetts and local governments continue to require all individuals to wear masks, employers should follow those local regulations and requirements.

  • Who is exempted from wearing masks? Under the CDC guidance, individuals who are “fully-vaccinated” no longer need to wear masks in most settings. An individual is considered to be “fully-vaccinated” when two weeks have passed since they received the single-shot Johnson & Johnson vaccine or the second dose of a two-shot Moderna or Pfizer vaccine.

  • How will an employer know if an employee is fully-vaccinated? Employers who do not mandate that employees become vaccinated may still request that employees who are vaccinated provide proof of such vaccinations (such as in the form of a copy of the vaccine ID card). Employers will then know which employees are/are not vaccinated and, therefore, who needs to wear a mask. For employers who are not interested in policing whether or not employees are vaccinated and/or wearing a mask, keeping a mask mandate in place is the most logical, conservative policy.

  • What if someone misrepresents their vaccination status? If an employer does not require vaccinated employees to wear a mask in the workplace, there is the potential for an employee to misrepresent their vaccination status so that they are not required to wear a mask. If an employer discovers that an employee has misrepresented their vaccination status, the employee can be disciplined. However, employers should make clear in their mask policies that misrepresenting vaccination status will lead to discipline, up to and including termination.

  • How will an employer know if a client, visitor or vendor is fully-vaccinated? In the absence of “vaccine passports,” employers will generally not know if their clients, visitors, or vendors are fully-vaccinated. While employers could require proof of vaccination upon entry to the workplace, such practice would be time-consuming. Instead, many employers will likely require that all clients, visitors and vendors continue to wear masks on the employer’s premises.

  • What does OSHA say? The Occupational Safety and Health Administration (“OSHA”) was expected to issue new workplace safety rules relating to COVID-19 a few weeks ago. Unfortunately, the new guidance is still in development. Prior guidance from OSHA emphasized mask requirements for all employees. However, we generally anticipate that OSHA will now follow the CDC’s new guidance and provide that employers do not need to require that fully-vaccinated employees wear masks in most situations in the workplace.

  • What about boosters? It is unclear if/when booster shots will be required. If booster shots are required, fully-vaccinated individuals will likely need to resume wearing masks at a certain time after receiving their last vaccination and prior to receiving a booster. Candidly, this remains to be seen but is another complication in the lifting of the mask mandate.

In light of the above complications and unknowns, employers in Massachusetts are likely best served by continuing to require that all employees, clients, visitors, and vendors wear masks on the employer’s premises. If employers choose to lift the requirement (following lifting of such requirements at the state and local level), they should issue a clear policy outlining when/where masks are required and providing that employees are responsible for their own compliance and may be disciplined for failure to comply and/or for misrepresenting their vaccination status. The guidance relating to COVID-19 and the workplace changes rapidly, so do not hesitate to reach out to your counsel if you are presented with any unique or complicated situations.