The good news is that the COVID19 pandemic appears to be on the wane. The bad news is that there is a ton of confusion and risk right now in the employment setting around masks, for employees and customers, and around vaccines, again for employees and customers. Guidance, mandates and the like on the Federal, State and Local level are also rapidly changing which has lead to a lot of questions.
Accordingly, I’ve put together the most common questions that I’ve been fielding in the last week or so (since the Centers for Disease Control (“CDC’) updated its mask guidance for fully vaccinated folks) and my responses. Please note, that this guidance may change as of next week……
What is the CDC actually saying about masks?
First, the CDC updated mask guidance is for “fully vaccinated” individuals.
In general, people are considered fully vaccinated:
- 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
- 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine
If you don’t meet these requirements, regardless of your age, you are NOT fully vaccinated. Keep taking all precautions until you are fully vaccinated.
- Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
What is the status of mask mandates in Florida?
Gov. DeSantis, in early May, revoked all county and local orders that required masks. As a result, and as required by Gov. DeSantis’ executive order 21-102, most Florida counties and local municipalities lifted their masking requirements.
Can I require my employees to continue to wear masks?
60% of Floridians are NOT yet fully vaccinated. Accordingly, businesses and employers should likely move slowly to lift masking requirements in light of the lower vaccine rates in Florida and because much of the State of Florida continues to be considered at high risk for COVID19 transmission.
Additionally, there is now a possible conflict between the CDC and Occupational Safety and Health Administration’s (“OSHA”) January 29, 2021, COVID19 guidance which requires employers to maintain a COVID19 prevention program in order to comply with OSHA’s requirements that employers provide employees with a safe workplace. OSHA, has for now, directed employers to refer to the CDC mask guidance for fully vaccinated employees. But, in areas where the general population is mostly not vaccinated, employers continue to have a general obligation to protect their employees from COVID19. Moreover, if not all your employees are vaccinated, the OSHA guidance remains in place.
As a result, most employers should continue to require employees (with exceptions for duly documented disabilities and religious exceptions) to wear masks for the near future unless all employees are fully vaccinated.
Maintaining mask requirements for your employees also reduces the risk that you will need to shut down your business for a COVID19 outbreak on your premises. My local coffee shop shut down last week because of another outbreak, and they lost two full days of business.
Can I prohibit my employees from wearing masks?
If any of your employees are not vaccinated they must continue to wear masks. Additionally, even fully vaccinated employees with health concerns may want to continue to wear masks and they should be permitted to do so.
Can I require my customers to wear masks?
Yes, notwithstanding Gov. DeSantis’ roll back of all government masks mandates, businesses can continue to require customers to wear masks or face coverings on their premises (again with exceptions for disabilities and religious exceptions).
Can I require my employees to obtain the COVID19 vaccine?
The Equal Employment Opportunity Commission (“EEOC)” has weighed in with guidance that answers some workplace vaccination questions. Employers may encourage or possibly require COVID19 vaccinations, but policies must comply with the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”) and other workplace laws, according to the EEOC.
Employers can ask employees if they have been fully vaccinated, but should refrain from follow up questions about why an employee has not been vaccinated. If an employer wants proof of vaccine status, those records should be handled and treated as confidential.
Can I ask my customers if they have been vaccinated before permitting them to unmask or enter my business?
This is a tricky question here in Florida, because Gov. DeSantis has issued an executive order prohibiting so called “vaccine passports”. As such, Florida businesses are prohibited from requiring “any patron or customer to provide any documentation certifying COVID-19 vaccination.” As a result, most businesses in Florida have decided not to ask customers about vaccine status, but asking likely wouldn’t run afoul of the executive order.
There has been a lot of buzz in certain circles that asking employees or asking customers about their vaccine status is a violation of HIPAA. That buzz is generally all wrong unless you are a “covered entity”.
Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or firstname.lastname@example.org.