To Mask Or Not to Mask?
Both NYS and the CDC now agree that fully vaccinated individuals can resume most normal life activities without wearing a mask starting this Wednesday May 19th. OSHA has also relaxed their guidance indicating they support CDC guidance, meaning employers now have the green light to make this change in their work place. But with an issue like COVID, we all know that the simple facts on the surface are far from all the information that needs to be considered- especially when factors like emotion and politics are still strongly in play.
As you consider whether to roll back the mask mandate for vaccinated individuals in your business, we strongly encourage you to consider the below points which could help you avoid secondary disruptive and costly effects to your business. With these in mind, it may be wise to hang on a little longer until masks are no longer required for anyone before making a change.
1. How do you plan to know who is vaccinated and who is not?
Like all information you collect on staff, collecting an employee’s vaccination status comes with the risk of violating privacy, discrimination, and retaliation laws. This information should be treated like any other medical info collected- which means total confidentiality by those who need to know only. If this information is shared with or becomes known by Managers or others in decision-making positions, it leaves the door open for employees to make claims that they are being treated differently because of their vaccination status. That being said, if wearing a mask is required by those not vaccinated, then this status will be advertised to all anyway, and that could be a problem. If that status is tied to a disability, religious or other protected class membership, the door is wide open for a discrimination or harassment claim to be made that you will be forced to definitively prove wrong, or otherwise, be found guilty (or more likely have to settle). The same goes for the opportunity for employees to make retaliation claims against employers if they feel they are being treated differently because they are not vaccinated. Although this risk may be low in reality, it’s worth considering how politically and emotionally charged the COVID issue still is- and with that, the potentially increased likelihood for employees to make claims if they feel like they need to take action to protect their rights or views.
Of course, employers can simply go with the honor system and continue to do the daily screenings for symptoms, exposure, etc. (recommended), and cut out this potential problematic information-gathering step. In this case, you will likely still need to be prepared to deal with questions and issues with employees concerned about whether others are respecting the honor system, wearing a mask when they should, putting others at risk, etc.
Finally, if you’re a business with customers, this question becomes even more complicated to answer. Outside of the honor system, it’s doubtful restaurants and others will be stopping everyone at the door to find out their vaccination status- which opens up a whole other can of worms for risk on the spread and other issues within your business.
2. If you plan to solve this problem by requiring vaccination for all, understand that it’s not that simple.
For many of the same reasons listed above, requiring the vaccine is not a foolproof option either. Of course, this could drive away great employees who just disagree with an employer playing this role, which is certainly an issue worth considering. But aside from this, requiring vaccines could also open the door to discrimination, harassment, or retaliation claims for those with disabilities, religious views, or other protected class status membership that keeps them from being vaccinated. If employers plan to go this route, they should keep in mind that they will be required to make accommodations for employees in these categories who choose not to be vaccinated, and then also make sure that there is no perceived or real retaliation, harassment, or discrimination taking place toward them for this status- by anyone. They should also consider this before implementing policies in the business that create any specific privileges or treatment for those vaccinated vs. those who are not. Again, this issue is still very emotional for many, so employers may also want to consider that employees may be “on edge” when interpreting and perceiving the treatment and actions by others toward them if they are not vaccinated in an otherwise pro-vaccination workplace, so this could increase the likelihood for claims.
As frustrating as it is, employers are still faced with making very difficult decisions for their business based on ever-changing and evolving guidance that is often not black and white even over a year after this pandemic started. As always, we encourage the more cautious approach and one that promotes taking a longer picture view rather than short-term action that could create even more disruption and costs for your business. It’s likely the light is at the end of the tunnel, and we just need to hold on a little longer to get there.
