The country breathed a collective sigh of relief when, on May 13th, the CDC announced updated guidance that fully vaccinated people no longer need to wear a mask or physically distance “in any setting.” In reality, masking and social distancing requirements remain in New Jersey and to a lesser extent in New York, and the guidance still leaves many open questions for employers. Notably, the CDC’s workplace guidance has not been updated as of the date of this writing and continues to recommend masking and social distancing in the workplace. The CDC’s latest guidance still calls for wearing masks in crowded indoor settings like buses, planes, hospitals, prisons and homeless shelters. Importantly, and as discussed below, the new guidance does not negate the need for continuing COVID protocols in the workplace.
While the CDC cited scientific statistics (the efficacy of the vaccines against illness from COVID-19 and certain variants) as the impetus for expanding maskless activities for vaccinated people, the agency also communicated that it hoped to incentivize more people to get vaccinated. Many employers considering whether to implement vaccine policies are now trying to figure out how the CDC’s newest guidance applies to their businesses.
What Does This New Guidance Mean?
New Jersey
New Jersey has not changed its existing masking mandates indoors where social distancing is not possible, but has relaxed masking requirements outdoors. On May 17th, Governor Murphy issued Executive Order 241, announcing individuals need not wear masks in “outdoor spaces,” regardless of their ability to social distance or vaccination status.1 Yet, the Order also reinforced that the Governor’s prior Executive Order No. 192, which requires individuals to continue to wear a face covering in indoor workplaces, remains in force.
New York
New York State diverged from New Jersey when it announced on May 17th that it planned to adopt the new CDC guidance on mask use and social distancing for fully vaccinated individuals for most business and public settings beginning on May 19th. Citing 52% of New Yorkers over the age of 18 being fully vaccinated, New York has authorized businesses to continue to require masks, but “[i]n most settings, vaccinated individuals will not be required to wear a mask.”2 New York has issued a flyer detailing how businesses in the state should implement the CDC’s guidance. Highlights include the following:
- Fully vaccinated individuals do not need to wear masks or social distance in most settings, including commercial settings. Excluded from this guideline, however, are Pre-K through 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and healthcare settings.
- For businesses that operate with less than 250 persons indoors or less than 500 outdoors, they may require proof of vaccination status, either by paper, digital application, the State’s Excelsior Pass (digital proof of COVID-19 vaccination or negative test results), or the honor system.
- For businesses with more than 250 persons indoors or 500 people outdoors (“large-capacity”), business capacity is no longer limited by any other criteria than the ability of unvaccinated people to remain six feet apart. If all patrons within an establishment (or a separate part of an establishment) are able to present proof of full vaccination, those fully vaccinated individuals need not wear a mask or social distance. Proof of vaccination by the honor system is insufficient in large capacity businesses.
- CDC Guidance Impact on the Workplace
For employers, decisions regarding modifying or eliminating any masking or social distancing policies are dependent on federal, state and local laws and the factual circumstances at those workplaces. With workforces containing both vaccinated and unvaccinated individuals, a changing landscape of official guidance, and the desire of our communities to return to normal, employers still have challenges ahead. Employers need to evaluate their workplace environments and make decisions that promote and protect workplace safety as the guidance evolves. Evaluating remote work policies and crystalizing job roles where a physical presence at the office is necessary are sure to be high on the action items list.
When your jurisdiction allows for a reduction or elimination of indoor masking, preliminary factors to consider when deciding whether to modify your workplace’s masking protocols include:
- The size and layout of the workspace in relation to the feasibility for employees to social distance;
- Whether workers are vaccinated, the percentage of workers who are vaccinated, and/or implementing a vaccination policy;
- How best to obtain vaccination information from employees;
- The extent to which visitors and/or customers are present who may or may not feel comfortable with a mask free workforce;
- The type of work being done and whether such work is conducive to social distancing;
- The employer’s ability to enforce internal COVID policies and potential consequences for violation;
- For unionized workforces, the obligations of any collective bargaining agreement and/or negotiations over changes to terms and conditions of employment.
Final Thoughts
Employers need to review their policies and ensure communications with employees are clear and consistent with all federal, state, and local rules and guidelines. As with any changes in the workplace, clear communication seeking alignment, understanding, and buy-in from both employees and management in complying with the business’s COVID policies and procedures, with the goal of keeping all employees and visitors to the business safe, remains critical.
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