The Masks are Off! …Or Are They?
Business leaders are grappling with how to manage company practices regarding mask mandates and vaccinations. The CDC’s recent announcement that fully vaccinated individuals do not have to wear masks or social distance, except in limited circumstances, is welcome news to so many people. Employers need to tread carefully, however since many states and localities have their own legislative requirements that companies may still need to comply with.
New Jersey’s Governor Murphy recently issued two Executive Orders, both aimed at removing mask mandates and capacity restrictions. While his earlier order was focused on indoor public places, the most recent one, which takes effect June 4th, affects employers of businesses that are not open to the public. As of June 4th, New Jersey employers will no longer be required to have fully vaccinated workers wear masks and social distance. In doing so, employers may ask workers to verify their vaccination status. If an employer cannot verify the vaccination status, it must require those individuals to continue to wear masks and social distance. It is important to note that fully vaccinated is defined as having received all vaccination shots at least 14 days prior.
New Jersey employers will also now be allowed to have visitors and customers enter their offices without masks or social distancing, regardless of their vaccination status.
Businesses may elect to impose stricter requirements for mask-wearing and social distancing, and they cannot restrict employees from choosing to wear masks, nor can they retaliate against any employee who continues to wear a mask.
Another provision of Governor Murphy’s order will allow businesses to bring workers back to the office. Companies will no longer be required to accommodate remote work, as they were mandated to do so earlier in the pandemic. Reasonable accommodations, however, need to continue to be made for employees who cannot return for medical reasons.
New York State has also declared in recent weeks that it will follow the CDC guidance on mask use and social distancing for vaccinated individuals in most settings. In fact, the State issued a flyer that breaks down the guidance for businesses. Other states are also implementing similar flexibilities for vaccinated workers, however many states have their own set of restrictions around when this will be permissible.
As much as this may be music to the ears of business owners, employers should not assume they are now free of all previously set obligations. As an example, New Jersey businesses still need to comply with existing requirements for daily health screenings and practices that promote workplace safety.
As companies do begin to lift these restrictions, they may also wonder about how to handle the topic of vaccinations. Some business leaders have been reluctant to inquire about the vaccination status of its employees out of fear they are crossing a line. In fact, this is a permissible inquiry, according to the EEOC, who clarified that it does not constitute a medical inquiry. Employers should not, however, ask unvaccinated workers why they have not been vaccinated, as that might lead to information that is protected under federal law. It is also important to remember that any vaccination records obtained should be treated as confidential medical records.
It is important for businesses to first review their existing policies and revise as needed to both ensure they are providing appropriate flexibilities, while also continuing to comply with any ongoing requirements at the state and local level.