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Should Employers Rescind Their Mask Mandates?
By Benjamin S. Morrell, Jeffrey Shapiro and Todd B. Logsdon
Thursday, 17th March 2022
 

As expected, state and local mask requirements continue to be lifted following the CDC’s loosening of its masking recommendations last month: A pros and cons list to consider before dropping your pandemic policies.

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. This Insight will review the current state of the law and offer considerations to take into account before dropping your mask mandates.

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. As we’ve advised throughout the pandemic, however, 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. FP’s Innovation Center maintains a 50-state map laying out the state-by-state laws that exist in your local area. You should consult with it before taking any steps.

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).

Conclusion

To ensure you stay up to speed with the latest developments, make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information and check out our FP Vaccine Resource Center For Employers. For further information, contact your Fisher Phillips attorney or the authors of this Insight.

Ben Morrell has in-depth experience advising and defending employers in litigation matters. He has litigated cases involving discrimination, wage-and-hour issues, arbitration, misclassification of independent contractors, and interference with business relations.

In addition to representing employers in trial and appellate courts, Ben has clerked for federal judges at the trial and appellate level. Before joining Fisher Phillips, Ben served as a law clerk to the Honorable Richard A. Griffin of the U.S. Court of Appeals for the Sixth Circuit and to the Honorable J. Daniel Breen and S. Thomas Anderson of the U.S. District Court for the Western District of Tennessee. He also practiced employment law at a firm in Nashville, Tennessee.

Jeff Shapiro is a member of the firm’s COVID-19 Taskforce, a cross-disciplinary team of attorneys dedicated to advising employers on the many workplace law aspects of the global coronavirus pandemic.

Jeff brings a deep understanding of the law with a steadfast commitment to helping employers mitigate risk while at the time same fostering safe, diverse and inclusive workforces. He has a demonstrated track record of success over more than 25 years, both in-house and in private practice, counseling and defending employers on a wide range of labor, employment and safety matters, including with respect to Title VII, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the National Labor Relations Act, and the Occupational Safety & Health Act. As a seasoned litigator, his unique systems-thinking approach delivers sound, risk-based guidance to employers for more informed choices in furthering their business objectives.

Todd Logsdon is a member of the firm’s COVID-19 Taskforce, a cross-disciplinary team of attorneys dedicated to advising employers on the many workplace law aspects of the global coronavirus pandemic.

Todd Logsdon is a partner in the firm’s Louisville office and co-chair of the firm's Workplace Safety and Catastrophe Practice Group. His practice is devoted to advising and representing employers regarding labor and employment law matters. Todd is a key contributor to Fisher Phillips’ COVID-19 Task Force and has assisted employers with successfully navigating workplace employment and safety issues throughout the pandemic.

www.fisherphillips.com

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