Answers to employer FAQs regarding face masks in the workplace

published in McAfee & Taft EmployerLINC Alert | May 18, 2021

With the CDC’s recent announcement reducing mask requirements for fully vaccinated people, there has been a significant uptick in the number of employers who are calling us with questions about possible changes to their own mask and vaccination policies. Here are answers to a few of the more frequently asked questions by employers:

Q: Can I require my employees to be vaccinated?
A: YES — provided you offer accommodations to those who, based on health or religious beliefs, will not be vaccinated.

Q: Can I ask employees whether or not they are vaccinated?
A: YES. Keep in mind that the answers to this question should be treated as confidential medical information. Do not ask employees why they have or have not been vaccinated.

Q: Can I ask for proof that an employee has received a COVID-19 vaccination?
A: YES. Again, treat this as confidential medical information.

Q: Can I treat vaccinated employees differently from non-vaccinated employees?
A: For purposes of mask-wearing and social distancing requirements — YES, so long as that difference in masking and social distancing is consistent with CDC or other health agency advisories.

Q: Despite the CDC’s new guidance, can I choose to enforce more stringent mask and social distancing requirements in my workplace?
A: YES. From a best practices standpoint, you will want to explain why the circumstances of your business and workplace call for such an approach. Certain employers, such as those in the healthcare industry, may be subject to face mask and other safety requirements specific to their industry.

A couple of other important points to keep in mind:

  • First, if you are located in a state or city that has its own mask requirements, those local rules may trump the new CDC guidance.
  • Second, keep your eye on OSHA. The CDC guidance is for general application; it does not focus on places of employment. OSHA has expressed an intention to issue COVID-19 safety and hygiene standards that specifically apply to the workplace. Conceivably, future OSHA standards could address mask and social distancing requirements for employers.

Each workplace setting is unique. If you have any questions or concerns on how to proceed with your COVID-19 safety measures, including vaccination and mask policies, please contact your McAfee & Taft Labor & Employment attorney.