Masking Requirements in the Workplace: What Employers Should Consider

Author: Becky Canary-King

The CDC has lifted mask requirements for vaccinated individuals, what does that mean for employers?

Earlier this month, the CDC issued new guidance that Fully Vaccinated individuals can resume activities without wearing a mask or social distancing, except where required by state or local guidelines. Illinois and Chicago subsequently issued new orders affirming that individuals who are Fully Vaccinated are not required to wear a mask. “Fully Vaccinated” means:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Options for Employees

Given these recent changes, Illinois employers now have a choice: to change their workplace rules to allow Fully Vaccinated individuals to go “maskless,” or they can keep current masking requirements in place (either temporarily or for a longer period). Of course, employers with employees outside Illinois need to check state and local requirements for the locations where they have employees.

Employers who wish to allow Fully Vaccinated employees to not wear a mask in the workplace are required to confirm that an employee is, in fact, Fully Vaccinated, prior to allowing them to go maskless.  This can be accomplished by requiring employees to present proof of vaccination or by requiring that employees certify that they are Fully Vaccinated. As a reminder, the information provided to confirm vaccination status needs to be treated as confidential medical information.

Because of issues around confidentiality, we recommend that employers who are not mandating that employees be vaccinated make clear that while Fully Vaccinated individuals may request to go maskless by submitting the requested documentation, it is their choice. In other words, regardless of vaccination status, employees will be required to wear a mask unless they request to go maskless and provide the required documentation. 

Employers should also be aware that the Chicago ordinance that allows Fully Vaccinated employees to go maskless also requires that employers have all employees who are reporting to the workplace to self-certify each day or shift that they are free of COVID-19 symptoms.

Options for Members of the Public

Under these new Illinois standards, employers also have the obligation to “seek to ensure” that customers who are not Fully Vaccinated wear a mask. It’s not clear from the Governor’s order whether this means that employers are required to independently confirm vaccination status prior to allowing a customer or visitor to be maskless in the workplace. Currently, large restaurants and retailers have taken different approaches to public masking requirements, but the fact remains that employers’ general duty to maintain a safe workplace continues to apply and should be considered before changing customer mask requirements. 

Looking Forward

Illinois Governor J.B. Pritzker announced that Illinois plans to fully reopen and enter Phase 5 of its COVID plan on June 11, “barring any significant reversals in our key COVID-19 statewide indicators.” Governor Pritzker has indicated that Illinois will continue following the CDC’s masking guidelines in Phase 5.

Navigating the Vaccine: Considerations Employers Should Keep in Mind

Author: Labor & Employment Group

Whether your business chooses to require the vaccine or allow employees to get vaccinated at their option, all employers are facing new challenges managing through this phase of the pandemic. Below are some considerations employers should be keeping in mind:

  • Continue to Require Safety Measures. The CDC continues to recommend employers require social distancing, face masks, and other safety measures in the workplace. While the CDC has indicated that fully vaccinated individuals can gather in small groups, it has not revised its recommendations regarding workplace safety.
     
  • Provide Resources for Employees. Many individuals are still having difficulty finding and traveling to vaccine appointments. Employers requiring or encouraging vaccination should consider what resources they can provide to assist employees with the process. Options include sharing local resources for appointment scheduling, providing time off, and providing other monetary incentives such as gift cards for employees who get vaccinated.
     
  • Consider Remote Work Options Moving Forward. With many employees working remotely for the first time during the pandemic, we anticipate greater demand for remote work moving forward. Employers should take time now to consider whether they will allow ongoing remote work once all employees can safely return to the workplace, and the potential implications for hiring and retention.

For more questions on COVID-19 vaccination policies in the workplace, please contact any member of our Labor and Employment team.

Chicago’s New Proposed Vaccine Anti-Retaliation Ordinance

On Tuesday, April 13, Chicago’s aldermen unanimously approved Mayor Lori Lightfoot’s proposed new anti-retaliation ordinance. Under the proposed ordinance, Chicago employers would be prohibited from taking any adverse action against employees who take time off to get vaccinated.

Additionally, employers that choose to mandate vaccinations would not be able to require employees to get vaccinated during non-work hours. Instead, employees must be allowed to get the vaccine during working hours and must be compensated for the time to get the vaccine, up to four hours per dose. Employers may not require employees to use paid sick time to meet this requirement.

Employers without mandatory vaccination policies would be required to allow employees to take time off work to get vaccinated. Employees may use accrued sick leave for this purpose.