CDC Guidance Raises Questions Regarding Businesses’ Mask Policies

The Centers for Disease Control (CDC) has released new guidance on the recommended wearing of face masks by those who are fully vaccinated. The CDC’s update, released May 13, notes that fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal or territorial laws, rules and regulations, including local business and workplace guidance. In certain settings, such as health-care facilities or while flying or taking public transportation, mask-wearing by vaccinated individuals is still required. While a positive indicator of the ebbing pandemic in the U.S., the guidance raises several questions for businesses.

It is likely that businesses will continue to have the latitude to maintain their own mask requirements in their establishments. However, as noted by Affinity HR Group, PPAI’s affiliated human resources associate, the change of guidance creates a number of unresolved questions for employers. How do you know if someone is truly vaccinated? What proof is required of employees, customers or vendors? Businesses must essentially plan their own response.

Affinity HR recommends that businesses alleviate the mask mandate for those fully vaccinated and ask for documentation to verify. Claudia St. John, SPHR, SHRM-SCP, company president, advises businesses to ask to see the documentation—but not keep a copy—and explain that they only want the information about the vaccine—nothing else. This information can be used to record who can be maskless and who should continue to wear a mask. To maintain a safe workplace, Affinity HR encourages employers to continue to require those non-vaccinated individuals to wear masks and socially distance to protect vulnerable employees and customers until the CDC issues further guidance.

“In the case of allowing vaccinated individuals to unmask and requiring those without a vaccine to continue masking, these requirements follow CDC—and in many instances state and local—guidelines,” St. John says. “Adhering to those guidelines has, throughout the pandemic, been our advice to employers and clients. Employers have the right to establish these requirements to protect their workplaces, clients, vendors and communities. Requiring unvaccinated employees to mask and socially distance is a continuation of that edict.”

St. John adds, “In terms of requiring proof of vaccination status, case law is clear, and the EEOC [U.S. Equal Employment Opportunity Commission] has reaffirmed, that requiring a COVID vaccine, and requiring proof of that vaccination, does not violate an employee's protection under HIPAA [Health Insurance Portability and Accountability Act of 1996] or other employment law. The risk of such violations comes when an employer wants to know why an individual has not received a vaccine. Those questions have the potential to violate an employee's right to privacy. Instead, we advise that, for those who chose to do so, 1) employers require proof of vaccination and, in the case where an individual cannot take a vaccine for medical or sincerely held religious belief reasons, and 2) request a note from a doctor (or religious leader) stating that the employee is unable to receive the vaccine. No reasons should be asked or provided.”

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