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New federal public health guidelines are clearing the way for fully-vaccinated Americans to clear that mask right off their face and inch back to normalcy.
Just don’t confuse that for a no-mask free pass at the store or on the job.
A day after the U.S. Centers for Disease Control and Prevention updated its guidelines to say people fully vaccinated against COVID-19 can ditch masks in most cases and “resume activities that you did prior to the pandemic” experts noted there are limits to what CDC guidance allows, and some companies said their mask rules for employees and customers will stay the same for now.
Workplaces can continue to write their own mask rules in most instances. “These are guidelines and employers have been able to require masks before,” said Professor James Brudney, an employment law expert at Fordham University School of Law. Without a governor’s prohibition or state law voiding requirements, there’s nothing stopping employers from setting the ground rules on conduct on their premises, he said.
Of course, employers can try to impose all sorts of rules that wouldn’t hold up in court. “But this isn’t that,” he said. Company rules relating to masks during a pandemic boil down to worker and consumer safety, he said.
For Brudney, the next new question is “whether employers are authorized to verify which employees are vaccinated and therefore don’t require masks.”
Though anti-discrimination laws typically restrict how much employers can ask workers about their health, employers are allowed to ask about a worker’s vaccination status, according to lawyers reading Equal Employment Opportunity Commission (EEOC) guidance on vaccines in workplace. The answer doesn’t necessarily divulge medical information, because an employee could have non-health related reasons for not yet getting the shot, they note.
Some workers are suing their employers, saying they cannot be forced to get vaccinated and shouldn’t get fired if they refuse to do so. Those lawsuits are pending.
To be sure, the CDC itself acknowledged its new mask guidance only goes so far. “Fully vaccinated people can resume activities without wearing a mask or physically distancing,” the agency said — but people still need to follow mask rules that are required by government law or regulations “including local business and workplace guidance.”
Fully-vaccinated people also still need to mask up when traveling on public transportation, the CDC added. CDC Director Dr. Rochelle Walensky said at a White House press briefing Thursday that the CDC would soon be updating its guidance for businesses and schools.
(If you’re getting tripped up on whether to mask or not to mask at this point in time, you’re not alone.)
Companies can still make workers and customers take their terms or leave, according to Michael Green, a professor at Texas A&M University law school and director of its Workplace Law Program. “Like no shoes, no shirt, no service,” he said.
Still, companies must walk a fine line if they continue to strictly stick to mask policies — but also if they change them. For one thing, it might rub some customers the wrong way, he noted. Any decision can create “divisiveness if you go one way or another.”
The new CDC guidelines put companies in a delicate spot with staff, said John Hooker, a Carnegie Mellon University professor who teaches business ethics. From a workplace regulation standpoint, “the benefit of the mask is now less certain. Employees know that. It makes the factual situation less clear,” said Hooker.
The new guidelines could also intensify a backlash from workers who say they don’t need the masks, he said.
One company solution, said Hooker, is trying programs that incentivize vaccination, and once a certain portion of staff gets vaccinated, mask policies can be altered.
As of Friday, almost 59% of the country’s adult population had received at least one shot and 45.6% were fully vaccinated, according to CDC statistics.
Some large companies with a national footprint told MarketWatch on Friday they do not have mask policy overhauls in store.
“At this time, The Kroger Family of Companies continues to require everyone in our stores to wear masks,” a spokeswoman said. Kroger
KR,
is continuing to encourage and incentivize worker vaccination with its $100 one-time payment for fully-vaccinated associates, she noted.
“As we have throughout the pandemic, we are reviewing current safety practices, the CDC’s latest guidance, and soliciting feedback from associates to guide the next phase of our policy,” she said.
Spokespeople for Lyft
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and Uber
UBER,
noted their own policies aren’t changing because the updated CDC guideline still say fully-vaccinated people should wear a mask on public transportation. Both companies are providing free rides to vaccination sites through July 4.
But other companies may make changes. Disney now has mandatory mask requirement at its parks. During a Thursday earnings call, Disney
DIS,
CEO Bob Chapek hinted that the updated CDC guidelines could prompt changes, according to the Associated Press.
Wearing a mask during a Florida summer “could be quite daunting,” he said. “So we think that’s going to make for an even more pleasant experience.”
