Masks and Vaccines: What Employers Need to Know

As the Delta variant spreads, local, state, and federal guidance on vaccines and masking is rapidly changing.

On July 27, 2021, the Centers for Disease Control and Prevention (CDC) revised its mask recommendations saying that everyone, including fully vaccinated individuals, should wear a mask indoors in public places in areas of substantial or high transmission. They also published this tool to help determine an area’s transmission status. Some states and cities have already implemented similar mandates; others are considering making the change soon.

Additionally, in a memo dated July 7, 2021, the US Department of Justice’s (DOJ) Office of Legal Counsel said the COVID-19 vaccines’ status as an emergency product doesn’t prohibit employers, universities, or other entities from requiring inoculations. Meaning that although the OLC memo isn’t binding and thus doesn’t guarantee court approval of a vaccine mandate, it provides a boost to employers and others that either have imposed such a requirement or are considering it. Courts around the country have thrown out cases fighting against employer vaccine mandates.

The Department of Veterans Affairs will require doctors, nurses, and other healthcare personnel at Veterans Health Administration facilities to get vaccinated. The White House is expected to issue a similar mandate for all Federal Employees this week.

More states and cities are also implementing mandates. California authorities say that state employees must prove they’re vaccinated or wear masks and get tested weekly for Covid-19. Those rules apply to workers in all healthcare facilities in California, except they must be tested twice weekly. New York City officials also announced that city workers must be vaccinated or wear masks and get tested weekly.

All of this will affect employers in the immediate future. What you should know:

Masks

  • Employers should be aware of any city, local, state, and federal guidelines and mandates. They can use the CDC tool and any local websites to help them make decisions. Remember that if you have locations in multiple states, the guidance or requirements may be different. Consider a universal practice regardless of location to avoid confusion and equity issues.
  • OSHA will likely follow the CDC. While history shows that OSHA may be slower to change their guidance than the CDC, it is possible they will use the latest CDC guidance as something they expect to see when inspecting a workplace. Employers may want to adjust safety measures to address potential breaches of the general duty clause based on the CDC mask guidance.

Vaccines

  • All of the currently available COVID-19 vaccines (Pfizer-BioNTech, Moderna, and Johnson & Johnson’s Janssen) are under an Emergency Use Authorization (EUA) from the Food and Drug Association (FDA). Some employees have fought against employers’ vaccine mandates by claiming that the mandate is not valid while the vaccine has an EUA status. The memo issued in early July states that the argument doesn’t stand. The memo essentially says that the EUA language does not place any restrictions on requiring an EUA product.
  • The VA, states and cities, universities, and medical facilities are currently leading the way in requiring employees to be vaccinated or submit to regular COVID-19 testing in order to return to the workplace.
  • Employers should carefully evaluate whether they will move from encouraging vaccines to requiring them. Consider current transmission and hospitalization rates in your area and how much contact your employees have with clients or customers.

The guidance from multiple sources is evolving, and we will continue to update our information. Contact Employers Council with questions.