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May 19, 2021

ALERT: CDC’s relaxed mask guidance, understand how it applies in your state

COVID-19DisabilityHarassment & DiscriminationSafety and Health 

Understand how CDC’s relaxed mask guidance applies in your state
On May 13, 2021, the Centers for Disease Control (CDC) announced that people who are fully vaccinated against COVID-19 (coronavirus) generally don’t need to wear masks or physically distance with a few exceptions, setting off a flurry of compliance questions for employers. Depending on your location, your state’s rules may be stricter than the CDC guidance. Here’s what the CDC says, what that means in each of these states, and our advice on how to apply it:

CDC’s guidance: The CDC says, “Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” A person is fully vaccinated if at least 14 days have passed since their final vaccine shot (the second shot from Pfizer and Moderna or the single shot from Johnson & Johnson). The CDC’s guidance doesn’t override state or local law, or require businesses to grant this freedom to fully vaccinated people. Also, government agencies still require masks in certain circumstances, such as in public transportation and health care settings.

Arizona and Idaho: Arizona and Idaho’s statewide mask mandates expired months ago, so for the most part, you have flexibility in addressing the CDC’s relaxed guidance. Be sure to check local law, though. Some cities and counties had their own mandates, although many are eliminating or revaluating them in light of the CDC’s guidance. (Governor Doug Ducey issued an executive order on March 25, 2021, prohibiting local enforcement of mask mandates in Arizona, but some cities and counties defied the order.) In both Arizona and Idaho, employers have the following options: (1) Require all workers to wear masks and keep at least 6 feet apart in an effort to provide maximum defense against the spread of the virus (more protective of employee health); (2) Impose the mask and distance requirements only on workers who aren’t fully vaccinated (middle ground, which has the effect of encouraging workers to get vaccinated but requires extra recordkeeping); or (3) Don’t require masks or physical distancing (less protective and in the event of an outbreak, could potentially expose the company to liability under OSHA’s general duty clause).

California: Existing mask mandates will continue to be required under state law until June 15, 2021, the California Health & Human Services Agency (CHHS) announced on May 17, 2021. Employers covered by Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) for non-health care workplaces must continue to enforce the existing mask requirements for all workers (such as when employees are indoors, outdoors less than six feet away from another person, or required by public health orders to wear a mask). It’s unclear whether Cal/OSHA will relax its workplace mask requirements for fully vaccinated workers when the rules for the general public change on June 15. Before the CDC came out with its relaxed mask guidance, the California Occupational Safety & Health Standards Board (OSHSB) was already scheduled to review Cal/OSHA’s proposed changes to the ETS, including mask requirements, on May 20, 2021. If the OSHSB approves the revisions, the updated rules will go to the California Office of Administrative Law for final approval before they become effective. We’ll report on any changes to the ETS.

Currently CHHS’s Department of Public Health says the general public must wear masks and keep at least 6 feet apart regardless of vaccination status in indoor public settings. Outdoors, members of the general public may dispense with masks (except at crowded events) as long as (1) they’re fully vaccinated; or (2) they keep at least 6 feet apart from people outside their household.

California’s Addendum to Blueprint Activity & Business Tiers Chart says the following records are acceptable proof of vaccination: “Vaccination card (which includes name of person vaccinated, type of vaccine provided and date last dose administered); or a photo of a vaccination card as a separate document; or a photo of the attendee’s vaccine card stored on a phone or electronic device; or documentation of vaccination from a healthcare provider.”

Montana: Montana no longer has a statewide mask mandate, but a new state law complicates employers’ ability to apply the CDC’s relaxed guidance. On May 7, 2021, Governor Greg Gianforte signed HB 702, which prohibits employers and businesses from discriminating against individuals on the basis of vaccination status. For an employer, this includes discriminating against someone in a “term, condition, or privilege of employment.” Because the ability to go mask-free in the workplace would probably be viewed as a privilege, this law appears to prohibit you from granting that benefit to workers who are fully vaccinated, while denying it to other workers. In Montana, your options are therefore: (1) Require all workers to wear masks and keep at least 6 feet apart in an effort to provide maximum defense against the spread of the virus (more protective of employee health); or (2) Don’t require masks or physical distancing (less protective and in the event of an outbreak, could potentially expose the company to liability under OSHA’s general duty clause). Whatever option you choose, the new law is clear that you’re free to encourage employees to get vaccinated.

Oregon: On May 18, 2021, the Oregon Health Authority (OHA) released Interim Guidance for Fully Vaccinated Individuals and Statewide Reopening Guidance – Masks, Face Coverings, Face Shields, letting many types of employers (including manufacturers) decide for themselves whether to allow fully vaccinated individuals – both employees and visitors – to stop wearing masks and physically distancing from others indoors, effective immediately. In outdoor settings, masks are no longer required for anyone, regardless of vaccination status, although OHA recommends wearing masks in large crowds. Today, May 19, 2021, the Oregon Occupational Safety and Health Administration (Oregon OSHA) issued a brief statement concurring with OHA’s approach in the workplace, effectively modifying the mask requirements in Oregon OSHA’s COVID-19 Workplace Rule to track with the OHA guidance.

Per the new OHA rules, if you choose to allow fully vaccinated individuals to unmask at your business, you must: (1) Have a policy for checking for proof of vaccination status (Vigilant recommends putting the policy in writing); (2) Request proof of vaccination status from each individual (employee or visitor); and (3) Review each individual’s proof of vaccination prior to entry or admission. OHA and Oregon OSHA say it’s not sufficient for employees or visitors to claim they’re vaccinated; they must provide proof of vaccination status. Otherwise, you must enforce physical distancing and mask requirements. OHA explicitly defines “proof of vaccination status” as documentation provided by a government or health care provider “that includes an individual’s name, date of birth, type of COVID-19 vaccination given, date or dates given…, and the name/location of the health care provider or site where the vaccine was administered.” OHA says sufficient documentation “may include, but is not limited to, COVID-19 vaccination record card, or a copy or digital picture of the vaccination record card.”

Employees and visitors have no recourse against businesses that choose to continue requiring masks and physical distancing. Also, per Oregon OSHA’s existing COVID-19 workplace rule, you must allow employees to continue to wear a face covering if they choose to do so to protect their own health and safety. You must continue to provide masks, face coverings, or face shields to employees who want them or are still required to wear them. You must also continue to accommodate employees and visitors with disabilities, who may have special needs related to wearing masks, face coverings, or face shields. (However, accommodating a disability doesn’t mean doing away with the mask requirement for unvaccinated people indoors, since you still have a duty to provide your employees with a safe and healthy working environment; it means you may have to find other solutions for unvaccinated individuals with disabilities, such as temporarily allowing them to work from home.) OHA recommends that businesses continue to provide face coverings for visitors; post clear signage about the face covering requirements; and educate employees on how to safely work and communicate with people who cannot wear masks, face coverings, or face shields.

OHA’s relaxed mask guidance doesn’t apply to certain listed businesses, such as health care offices, or any other type of business subject to separate, industry-specific guidance by the OHA; those businesses must still require masks and physical distancing, regardless of vaccination status. See the list of exclusions on the first page of OHA’s “Statewide Reopening Guidance — Masks, Face Coverings, Face Shields.”

Washington: Governor Jay Inslee announced on May 13, 2021, that Washington intends to follow the CDC’s guidance, so the governor’s office will be working with L&I and the state department of health to update the state requirements. We’ll report on the release of updated guidance as soon as possible. Meanwhile, the current temporary worker housing rules from Washington’s Department of Labor and Industries (L&I) say the following documents are acceptable proof of vaccination: “A vaccination card (which includes name of person vaccinated, type of vaccine provided, and date last dose administered); or a photo of a vaccination card as a separate document; or a photo of the attendee's vaccine card stored on a phone or electronic device; or documentation of vaccination from a health care provider electronic health record or state immunization information system record.”

Tips: If you decide to allow fully vaccinated workers to go mask-free at work (if and when permitted by state law), you’ll have a number of practical decisions to make. Some key considerations are outlined below:

Acceptable records: In states such as Arizona and Idaho, you could choose to rely on the honor system to identify who is fully vaccinated, but we don’t recommend doing so. If applying separate requirements to vaccinated and unvaccinated workers is important to your safety efforts, then it’s wise to require verification. The CDC doesn’t require employers to obtain vaccination records, and therefore doesn’t specify what records might qualify as acceptable verification. In California, Oregon, and Washington, follow state rules on what is an acceptable record.

Right to ask for vaccination records: Outside of Montana, requiring proof of COVID-19 vaccination is legally acceptable as long as you have a legitimate business reason to do so. It doesn’t violate the Americans with Disabilities Act (ADA) or the Health Insurance Portability and Accountability Act (HIPAA). The U.S. Equal Employment Opportunity Commission (EEOC)’s FAQs on COVID-19 state that asking whether someone has been vaccinated for COVID-19 isn’t a medical inquiry for purposes of the ADA. For information on why HIPAA doesn’t apply to information gathered in your role as an employer, please see our Legal Guide, HIPAA Privacy Rules: How They Affect Employers.

Reviewing records: You should designate and train someone to be in charge of reviewing proof of vaccination, ideally a person with an HR background. In order to reduce your recordkeeping burden, you may want to designate a specific day of the week and/or time window in which employees may bring proof of their vaccination status.

Retaining records: In states that still have mask mandates (California, Oregon, and Washington), determine whether your state specifies what information you must retain when verifying vaccination status. We don’t yet have guidance from California, but we anticipate information may be released as June 15 approaches. In Oregon, the OHA and Oregon OSHA guidance documents don’t contain any requirement to retain copies of vaccination records. In Washington, the only guidance we have so far is the existing regulation on temporary worker housing, which says that L&I may request copies of records showing employees are fully vaccinated (if housing operators allow those employees to dispense with the standard requirements for masks and physical distancing). L&I’s rule seems to imply that the records would consist of copies of the actual documents.

To the extent allowed by state law, you’ll save yourself extra paperwork by simply reviewing the records and not retaining copies. One suggestion is to keep a simple “Yes/No” checklist with employees’ names and the date you verified whether they’re fully vaccinated. If you do keep copies of vaccination records, we recommend keeping all of them together in one confidential file, separate from personnel files. Keep them in a secure location, accessible only to those with a business need to know. From a practical standpoint, it doesn’t seem realistic to expect businesses to copy the records of customers, visitors, vendors, or other non-employees. The story may be different when it comes to employee records. We’ll report on any eventual clarifications to this question in California and Washington.

Workplace enforcement: Consider providing the names of employees who can go without a mask to each supervisor, so they know who is required to properly wear a mask and maintain physical distance from others, and who isn’t. Don’t release actual vaccination information; rather, keep it about who can and can’t go maskless. You could even issue a sticker or similar item for employees to wear, so supervisors and coworkers can tell at a glance which employees are approved to not wear a mask, a bit like a workplace VIP pass.

Mutual respect reminder: If you choose to change your policy so that vaccinated employees are no longer required to wear a mask, it’s a good idea to include a “be kind” reminder. There are many reasons why someone may not be vaccinated or why they may choose to wear a mask even if they’re vaccinated. Let employees know that you expect them to treat each other with respect, regardless of whether they’re wearing a mask. In addition to promoting the new “privilege” for fully vaccinated individuals, you can also emphasize your continued concern and vigilance for the health and safety of employees who aren’t vaccinated, as well as their family members.

Health screening: If you’re currently conducting health screenings of workers such as questionnaires or temperature checks, you should evaluate whether to discontinue those for fully vaccinated workers. A small percentage of these workers may still come down with symptoms, so depending on how thorough you want to be versus how time-consuming the screenings are, you may or may not want to continue this practice. Either way, instruct all workers to stay home and notify Human Resources if they develop symptoms.

Members of the public on your property: In general, you can set conditions for members of the public (e.g., vendors, contractors, and visitors) who access your private property. During the COVID-19 pandemic, this means following any state-specific requirements that exist for the space you’re dealing with (e.g., a showroom that is subject to COVID-19 retail guidance). You don’t necessarily have to apply the same rules to your employees that you apply to others on your property. For example, you could exempt employees from mask requirements if they prove they’re fully vaccinated, but not allow the same exemption for customers, or vice versa. Taking a consistent approach may reduce confusion and complaints, however. For specific questions about what laws might apply to your private property, and what you can and can’t ask for from members of the public, talk with your corporate counsel or reach out to your Vigilant Law Group employment attorney for a referral.

Weigh your options: As you consider your options, keep in mind that you can still choose to require masks for everyone, if you don’t want the hassle of verifying individuals’ vaccination status. Questions? Contact your Vigilant Law Group employment attorney or Vigilant safety professional.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.