This blog is one in a two-part series discussing the recent modifications to governmental guidance, social-distancing protocols, and COVID-19 restrictions. In this blog, we’ll summarize the changes that impact the workplace. In part two, we will answer the tricky questions that we’ve been hearing already, such as: Even though the state no longer will mandate it, can I still require my employees to wear masks? How can I (legally) find out about an employee’s vaccination status? Is our business liable if we relax the social-distancing protocol and an employee brings Covid-19 to the workplace? How can we avoid discrimination claims?
The biggest changes for Massachusetts employers go into effect on May 29, 2021. Therefore, employers need to become familiar with the changes and make a plan to address different scenarios as soon as possible.
The Centers for Disease Control and Prevention’s Guidance Is Not a Law
In March, the Centers for Disease Control (CDC) relaxed certain COVID-19 safety protocols for those who have been fully vaccinated. (In general, people are considered fully vaccinated two weeks after their second dose in a two-dose series, such as the Pfizer or Moderna vaccines, or two weeks after a single-dose vaccine, such as Johnson & Johnson’s vaccine.) At the same time, it urged that even fully vaccinated individuals continue to abide by mask-wearing and social distancing practices in most settings given continued uncertainty as to how long any of the vaccines will protect recipients and how effective they are against emerging variants of the virus. If you’d like more information on those changes, you can read our blog here, but you should be aware that late last week, the CDC issued new, updated guidance that demonstrates it is taking steps toward allowing people to return to life in the pre-COVID days.
According to the CDC’s most recent guidance, as of May 13, 2021, fully-vaccinated people, can go without masks in both indoor and outdoor settings—sort of. The new guidance provides that fully vaccinated people can resume activities without masks or social distancing, but only if applicable laws (such as federal, state, local, etc.) allow it. So why the caveat? The CDC defers to other legal authorities because its guidance is just that—guidance based on its expertise in contagious diseases.
Allowing local governments to make the final decision on when and how to relax coronavirus precautions seems to make sense considering different vaccination and infection rates in different geographic areas present barriers to a workable one-size-fits-all mandate. Also, by issuing an “order,” the CDC may have concerns about overstepping its authority, which frequently has been challenged lately. For example, earlier this month, a federal judge in Washington held that the CDC did not have the legal authority to institute a moratorium on evictions during the pandemic, which had been done as part of the federal effort to assist those who had been hit hardest by the pandemic. (Judges in two other jurisdictions previously came to the same conclusion.)
There are some exceptions to the CDC’s relaxed mask standards. For example, they don’t apply in health care settings. Both patients and health care professionals are advised to continue with mask protocol. And, there have been no changes to travel guidelines. Before making any changes, employers should take a look at whether the no-mask protocol is applicable to or advisable in its particular business.
Massachusetts Mask-Mandate Eliminated before Memorial Day
The CDC’s guidance defers to the states to make decisions about social distancing and mask mandates, and Massachusetts is one of many states that recently has changed its position on those topics. Like the CDC, Massachusetts is taking steps to eliminate social barriers presented by COVID-19. As of May 29, 2021, Governor Baker’s face-covering order is rescinded. Massachusetts will no longer require masks in most situations, for fully vaccinated individuals. The Department of Public Health will be issuing a new advisory that is expected to be consistent with the CDC’s most recent guidance. It will advise all unvaccinated residents to continue to wear face-coverings in indoor settings and when they can’t socially distance.
Still, face coverings will continue to be required for both vaccinated and unvaccinated individuals in the following locations:
- Public and private transportation
- K-12 public schools, collaboratives and approved special education schools
- Childcare programs
- Health care facilities and provider offices
- Congregate care settings
- Emergency shelter programs
- Private special education schools, which offer residential services
- Rehabilitative day services
Employers Who Adhere to CDC Guidance Are not Automatically in Compliance with OSHA (as of this time)
The Occupational Safety and Health Administration (OSHA) has announced on its website that it is in the process of updating its January 2021 Guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” In the meantime, it has given employers the informal go-ahead (on its website) to follow the CDC’s updated mask guidance for employees who are fully vaccinated. OSHA’s announcement does not apply to activities in the health care industry.
Tailoring the Guidance to Your Business
Organizations still subject to mask mandates and guidance will certainly have it easier than other employers as the decision has been made for them. Other employers will need to decide whether they want to continue with the status quo—at least for a while, and, if so, how to go about doing it, including how to communicate the decision to employees. Is it a violation of an employee’s rights to require social distancing where Massachusetts does not require it? Stay tuned for Part Two.