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With the Delta variant rapidly spreading, breakthrough cases and hospitalization rates rising, and CDC guidance and local regulations swiftly changing, many employers are reassessing their COVID-19-related policies. Today, we’ll be doing a quick refresher on COVID safety policies in the workplace, like masking and vaccination requirements.

Do we need to change our policies to comply with the new CDC guidelines?

In short, no. In light of the Delta variant and increase in breakthrough COVID cases, the CDC is now recommending that all individuals, regardless of vaccination status, wear a mask or facial covering in indoor spaces. However, the CDC merely offers guidance—it’s up to state and local governments, employers, and individuals to decide whether to follow it or not. That said, the Occupational Safety and Health Administration (OSHA) and similar state workplace safety agencies often look to CDC guidance when determining whether employers are providing a safe workplace, so implementing policies that comply with CDC guidance isn’t a bad idea.

So, you’re saying that we don’t HAVE to require masks again?

No, not necessarily. Whether employers are required to mandate masking in the workplace again depends on the city and/or state in which the workplace is located, and it can also depend on the individuals’ vaccination status. For example, though there’s no state-wide mask mandate in California, nine cities have reinstated mask mandates indoors (covering a great chunk of the California population). In Connecticut, only unvaccinated people are required to mask in public places. Some city and states only require masking at work for public employees. As always, be sure to check for regulations in your state, city, or county to determine who by law is required to mask up and where.

What is there is no state or city mandate? Can we still require masks?

Of course, employers have the discretion to set the terms and conditions of employment. Just like how employers may require their employees to wear gloves, goggles, or hairnets for safety purposes, employers may require employees to wear masks while on the job. That said, you’ll need to accommodate those who can’t wear masks for sincerely held religious beliefs or due to a disability.

 Can we just require everyone to get vaccinated before returning to the workplace?

Yes. Requiring employees be fully vaccinated before returning to the workplace is an option more and more employers are adopting. The EEOC has maintained that requiring employees show proof of vaccination status as a condition of employment does not violate the ADA or any other federal laws (assuming that the policy is applied fairly and consistently). Still, employers must accommodate employees/applicants who can’t get vaccinated due to a sincerely held religious belief or if they can’t get vaccinated as the result of an ADA-covered disability. Some examples of possible accommodations include isolated workspaces, mask requirements, remote working arrangements, or temporary leaves of absence. Like any other accommodation, employers don’t need to provide accommodations that create an undue hardship on the business.

What about visitors? Can we require they show proof of vaccination prior to entry, too?

This also depends on the city or state in which the workplace is located. Some states and cities prohibit private businesses from implementing these types of policies, while others are beginning to require that they do so. Unless prohibited by state or local law, businesses may require patrons or other visitors show proof of vaccination prior to entry if they would like. Like any policy, it should be applied fairly and consistently.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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