Should Employers Rescind Their Mask Mandates? A Pros and Cons List to Consider Before Dropping Your Pandemic Policies

As expected, state and local mask requirements continue to be lifted following the CDC’s loosening of its masking recommendations last month. As of today, only 10 states require masks – and many of those requirements apply only in certain limited settings, such as in the healthcare context, shelters, residential care facilities, and schools. The lifting of these governmental mask mandates raises the question of whether employers should continue to require masks in the workplace as a matter of internal policy. There’s no “one size fits all” answer to this question. Rather, each business should weigh the pros and cons of requiring masks in their workplace and decide what’s best for their particular locations and circumstances. 

What Does the Law Say?

Importantly, the CDC still recommends that masks be worn in places of high transmission. As of today, that covers only about 15% of the country and that number has been decreasing.  Employers who don’t follow the recommendations of the CDC (and applicable state and local health departments) do so at their own peril. That’s because OSHA or a state OSHA agency can – and often does – cite employers under the “General Duty Clause,” using the failure to follow recommended safety measures (i.e. CDC recommendations) as the basis for the alleged violation.

The General Duty Clause of the OSH Act broadly requires that employers provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This clause has served as OSHA’s COVID-19 workhorse, as the agency has not successfully issued new specific pandemic-related standards applicable to most employers but repeatedly cited employers under the General Duty Clause for failures related to masking.

While OSHA looks to CDC recommendations in issuing its own guidance documents for employers related to COVID-19 and workplace safety, it has not yet updated them to reflect the CDC’s recent relaxation of masking recommendations.

It is therefore prudent for employers to continue to require masks, regardless of vaccination status, in places of high transmission and to continue to track the CDC Date on Community Transmission Levels to make sure your workplaces are not in a place of high transmission. In places of “medium” or “low” transmission, the CDC does not currently recommend masks (except in areas designated as “medium,” where it recommends that those who are immunocompromised or at high risk for severe illness should confer with their doctor about whether to wear a mask). That means in these areas it is up for the employers to decide what to do.

Finally, before brainstorming about possible next steps, make sure you understand the lay of the land in your own state. 

Pros and Cons of Lifting Mask Requirements

Once you understand the lay of the land, you’re ready to consider the various pros and cons associated with removing mask requirements at your business.

Pros:

• Many employees are ready to stop wearing masks and have begun doing so when not at work.
• As other employers lift their mask mandates, not doing so could hurt efforts to attract and retain talent. In today’s competitive labor market, this is a particularly relevant concern.
• Mask mandates are difficult to enforce, especially if the requirement is based on vaccination status.
• Mask mandates may create resentment from and between employees, especially if based on vaccination status.

Cons:

• As noted, it is prudent to keep masks in place at least in areas of high transmission. For national employers, this may mean different policies in different locations which can create logistical and communication issues.
• Recognize that you could open yourself up to an OSHA inspection (which you can track here) or a General Duty Clause citation if you drop your mask mandate too quickly or in an inopportune setting.
• While COVID-19 cases have been decreasing steadily, this was also the case in mid-2021. While we hope not to endure another dramatic spike in cases (reminiscent of the Delta and Omicron variants), one certainly could arise. So employers who lift their mask mandates need to accept the risk that they may have to reinstate them at some point (at least in some areas). As we’ve seen with stay-at-home recommendations, for example, putting the genie back in the bottle is not easy.
• While not everyone agrees on the degree of protection, masks clearly help in preventing transmission of COVID-19. As such, not requiring masks increases the chances of employees getting the virus, which could place stress on your workforce (and, in some locations, require you to provide paid leave).

CDC Reverses Course and Recommends Fully Vaccinated Individuals in “Substantial” and “High” Transmission Areas Continue to Wear Masks

The U.S. Centers for Disease Control and Prevention (CDC) announced yesterday that the agency now recommends that people in areas with “substantial” and “high” COVID-19 transmission should wear masks indoors, regardless of vaccination status. This announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. The updated guidance comes on the heels of what some call the third (or fourth) surge of COVID-19 infections due to the highly transmissible Delta variant, which CDC Director Dr. Rochelle Walensky indicated behaves “uniquely differently” from prior virus strains. While Director Walensky stressed that the vast majority of severe illness and death is among unvaccinated people, she also indicated data shows breakthrough infections can happen in 1 out of 10 vaccinated individuals in a “substantial” or “high” transmission area.  So what does this mean for employers and your masking policies?

What Has Changed and Why?

The announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. Since then, new data shows the Delta variant is more transmissible than earlier strains of COVID-19, with those infected with the Delta variant carrying the same viral load as unvaccinated individuals with COVID-19.

Indeed, the CDC indicates while most COVID-19 transmission occurs in unvaccinated people, the amount of the virus in breakthrough infections caused by the Delta variant (e.g., viral load) is comparable to unvaccinated infections. This led the CDC to conclude that – although rare – breakthrough infections of vaccinated individuals have the same potential level of transmissibility as unvaccinated persons. Accordingly, the agency urged communities with substantial and high transmission rates to enforce masking guidelines to prevent the spread of COVID-19.

What About OSHA’s Emergency Temporary Standard?

Last month, OSHA issued its Emergency Temporary Standard (ETS), which gave wide latitude to most employers on their masking policies for vaccinated workers. OSHA provided that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. 

Yesterday’s CDC guidance could change that, particularly in areas with substantial and high transmission. That’s because the OSHA ETS specifically cited to the CDC’s May 13 guidance on masks as a factor to justify many of its recommendations.

According to the CDC, “high” transmission equals more than 100 cases per 100,000 people over a seven-day period, while “substantial” transmission equals 50-100 cases per 100,000 people over a seven-day period. The CDC recommended using its COVID-19 data tracker, which is updated daily by state and county. Much of the nation is currently in a substantial or high transmission category.  

Of course, employers should still take measures to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces, but many may need to implement masks for fully vaccinated workers in specific communities. 

What Should Employers Do?

The CDC’s new guidance provides important considerations for employers who may be thinking about implementing or rescinding masking policies. Even though CDC guidance is not directly binding  on employers, it is critically important. This is because OSHA’s guidance repeatedly refers to CDC guidance and clearly emphasizes the protection of people who are unvaccinated or otherwise at risk, which is the focal point of the CDC’s updated guidance.

If you have locations in areas which do not meet the criteria for “high” or “substantial” transmission, no immediate action is necessary. But it may still be prudent to have a plan in place to address how your company will adjust its masking policies if necessary. You should also consider state and local laws before making any changes to masking policies, given that states, such as Arkansas, have passed legislation barring entities (local governments) from imposing mask mandates.

If you are encouraging or mandating vaccines, you should also be prepared to address employee concerns over vaccination policies. This is especially true given the CDC’s position that infections are possible in vaccinated individuals and that those individuals may transmit the virus to others at a greater rate than previously understood.