How to Say Goodbye to Mask Mandates – Practical Tips for Employers
By: Rebecca Bernhard
Partner Dorsey & Whitney
With mask mandates being eased or lifted in states and local jurisdictions, employers across the nation now face the practical challenge of maintaining a safe and compliant workplace in an increasingly open environment.
Rebecca Bernhard is a partner at the international law firm Dorsey & Whitney in both its labor and employment practice who has been helping companies navigate workplace changes since the beginning of the pandemic. She says several important factors should be considered in making decisions as mask mandates ease.
“First, employers deciding whether to eliminate masking requirements in the workplace should carefully consider whether and how they will ask employees to provide proof of vaccination, and they must be aware of relevant legal considerations if making those inquiries. For example, several jurisdictions have implemented (or are considering) laws banning employers and other institutions from requiring “vaccine passports” or other methods of requiring individuals to provide proof of vaccination to gain access, entry, or service,” Bernhard says.
“Similar to considerations made in deciding whether to mandate employee vaccinations, employers also should be mindful that employees may choose not to be vaccinated for religious or medical reasons. Employees should not be treated in such a way that they feel discriminated against for those reasons. Employers who choose to selectively lift masking requirements only for individuals who have been vaccinated may face risks of discrimination claims on those bases. Proper planning is important to mitigate those risks,” Bernhard says.
“Second, employers should be sure to check for local masking requirements which may still be in effect. For example, the city of Minneapolis has announced plans to maintain its indoor mask mandate for the time being. St. Paul also announced it will maintain its mask mandate on the heels of Minnesota lifting its mandate. Accordingly, employers with operations in Minneapolis, St. Paul, or other jurisdictions still enforcing a mask mandate should continue to abide by applicable local requirements,” Bernhard says.
“Employers must also continue to comply with other applicable federal and state agency guidance or requirements regarding mask mandates. Notably, OSHA announced it is “reviewing the recent CDC guidance and will update our materials … accordingly,” while recommending employers refer to the CDC’s updated guidance “for information on measures appropriate to protect fully vaccinated workers.” Although OSHA’s guidance will be updated soon, until it is, employers may wish to continue requiring employees—regardless of vaccination status—to wear a mask and/or physically distance in any indoor setting. Similarly, employers must still establish and implement a COVID-19 Preparedness Plan, which addresses topics such as hygiene procedures (including wearing face coverings where appropriate) and physical distancing in the workplace,” Bernhard says.
“Third, even with state and local mask mandates ending, employers may ultimately chose to implement their own mask mandates at the workplace, provided they are acting in accordance with applicable state or local law. For workplaces choosing not to mandate masks, however, employers should consider encouraging employees to act within their own comfort level and to continue wearing a mask at the workplace if desired,” Bernhard says.
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