As of May 19, 2021, New York, New Jersey, and Connecticut, each began an additional easing of COVID-19 related restrictions as result of increased vaccination rates and decreased positive case. This easing included increases in business capacities, outdoor and residential gathering limits, and large-scale venue capacities. New York Governor Andrew Cuomo and Connecticut Governor Ned Lamont have also announced that they will be following the CDC’s May 13, 2021 update and will no longer require indoor mask wearing or social distancing for those who are fully vaccinated. New Jersey Governor Phil Murphy announced on May 24, 2021 that the mask mandate in his state will be lifted for vaccinated individuals starting May 28. This article will discuss the implications employers now face as a result of the lifted mask mandate and future obligations to anticipate.
Effect on Employers and Employees
Individual businesses are being left with the choice as to whether or not they want to follow the CDC’s guidance for those who are vaccinated and whether or not they want to require their employees’ vaccinations. According to the Equal Employment Opportunity Commission (EEOC), employers are permitted to require their employees to get the COVID-19 vaccine, but still need to consider reasonable accommodations for both employees with disabilities and employees unable to get the vaccine for religious purposes. Similarly, employers may ask for proof of vaccination as it is unlikely to elicit disability related information, but should be cautious of subsequent questioning as it could lead to disclosure of this type of information. Even though the Food and Drug Administration (FDA) has only approved the vaccines for Emergency Use Authorization, employees that refuse mandatory vaccination without an accommodation, may face termination in at-will employment settings.
After the CDC update, the Occupational Safety and Health Administration (OSHA) issued its own update stating that until further notice, employers should refer to the CDC guidance in regard to the appropriate measures to take for fully vaccinated workers. OSHA will be reviewing the CDC guidelines and updating their own advisories accordingly. OSHA’s acceptance of the CDC update allows employers to adopt policies consistent with the CDC’s guidelines without facing compliance issues with OSHA.
OSHA also stated that employees with legitimate accommodations or employees that refuse the vaccination in non-mandated employment settings, should continue to be protected from workplace harassment by coworkers or supervisors. OSHA urges that unvaccinated and vaccinated employees be treated equally and employers should make their employees aware that unfair treatment is prohibited.
Effect on Consumers
Similarly, individual businesses maintain discretion over whether or not they want to continue to require vaccinated individuals to wear masks in their establishments. With many states already placing bans on “vaccine passports,” New Jersey and Connecticut are still undecided on the matter. Back in March, New York became the first state to launch a statewide vaccine passport platform, called Excelsior Pass. Excelsior Pass can be used to show both proof of vaccination or a negative COVID-19 test. The federal government has refused to enforce a nationwide vaccination passport and has ultimately left it up to the private sector and individual states to implement their own systems.
As many businesses have already changed their policies to allow vaccinated individuals to enter mask-free, the question of how they will enforce this policy has arisen. This has also been left up to their discretion. Some businesses have chosen to follow the “honor system” and assume any consumer entering without a mask is vaccinated, while others have decided to check vaccination cards and passports upon entry. As for social distancing, if 100% of occupants are vaccinated, there is no capacity limit. However, if some occupants remain unvaccinated, capacity is only limited by the amount of space needed to maintain six feet of distance between all occupants.
Earlier this month, New York Governor Cuomo signed into law the New York Health and Essential Rights Act (the “Act”). The Act directs that the New York Department of Labor and New York Department of Health come together to create a Health and Safety Model Plan that will prevent future airborne infectious disease transmission in the workplace. The first-in-the-nation Act will create clear and enforceable health and safety standards which private employers will then have to comply with in order to keep their employees and consumers safe from future infection. In the event of another public health crisis, these policies will serve as a preventative measure and ensure better preparation for possible future diseases.
Models will be industry specific and will include requirements for health screenings, wearing of face coverings, personal protective equipment, creation of hand hygiene stations, breaks for practicing hand hygiene, the cleaning and disinfecting of shared equipment and surfaces, social distancing, quarantine guidelines in-case of exposure, air flow and exhaust requirements, compliance with local laws, the appointment of supervisory employees to maintain the new standards, and regular reviews of employer policies. It is expected that industries considered to be higher risk for the spread of airborne illness have more stringent standards while those of lower risk will have less stringent standards.
Employers will have the option of adopting the state created model standards or creating their own policy which must meet a state minimum. Employers will be required to provide copies of these prevention plans to all of their employees and must post copies of the plans in the workplace and in employee handbooks. Employees will have the opportunity to establish joint labor-management workplace safety committees, in order to have a say in their employer’s prevention plan, as well as to ensure compliance by the employer. Failure to adopt a prevention plan and violation of an adopted plan will both be punishable by fine. Specific guidelines are set to be available by June 4, 2021 and a joint labor-management workplace safety committee must be established by employers with 10 or more employees by November 1, 2021.
Due to the lifting of mask mandates in some states, employers have been given the decision as to whether they will maintain their mask policies, whether they will require employee vaccination, and if or how they will enforce new mask policies that allow vaccinated individuals to go mask-free. Employers in New York will also have to begin to look at possible airborne disease prevention policies in order to comply with the recently passed NY HERO Act. Overall, employers are addressing various concerns as the country begins to normalize after the COVID-19 pandemic.