What Can/Should Wisconsin Employers Do Following the CDC’s New Mask Guidance?

May 24, 2021 | John C. Gardner

As you know, the Centers for Disease Control issued new mask guidance on May 13, 2021, providing some welcome news for much of America and its workplaces – with some exceptions, individuals who are fully-vaccinated against COVID-19 can refrain from wearing face coverings both outside and while indoors. So, what should Wisconsin employers do with this guidance? I recommend using the following 3-step process:

First, check the status of any local city/county order that may remain in place following the CDC’s revisions and continue to follow that order until it is amended or expires. For example, Dane County’s current mask order – which provides that fully-vaccinated individuals must still wear facial coverings when indoors in a wide variety of circumstances – will remain in place until June 2, 2021.

Second, plan on keeping close tabs on any new guidance from the Occupational Safety and Health Administration over at least the next several weeks. OSHA posted a generic statement on its website during the week of May 17 referring employers to the new CDC guidance. However, that same statement also provides that OSHA is “reviewing the recent CDC guidance and will update [its] materials” at some point in the near future. Employers will want to closely review any subsequent updates from OSHA to ensure that they are taking all required steps to help protect the health and safety of their workers, and comply with applicable federal guidance.     

Third, once any local mask mandate has expired or been revised consistent with the CDC’s guidance, determine the best way to incorporate the CDC’s changes into your existing health precautions and facial covering policies. In light of current information, it appears completely appropriate for employers to permit fully-vaccinated individuals to go maskless at all times within the workplace, while still requiring those who are not vaccinated (and/or not yet fully-vaccinated) to continue to wear appropriate face coverings in most circumstances.

One possible way to incorporate the CDC’s changes is through the honor system – an employer could inform its workforce that fully-vaccinated individuals are no longer required to wear masks, and then trust that all employees who subsequently work without masks are fully-vaccinated. Of course, this approach comes with some fairly obvious risks, namely that certain employees who are not vaccinated may be dishonest about that fact, and certain other employees may be concerned others are lying about their vaccination status. So long as the employer maintains a legitimate policy providing unvaccinated individuals must remain masked, I doubt the employer will be at risk of suffering any significant liability in the event a handful of employees lie about their status and someone gets sick. However, any employer taking this or a related approach based on the honor system should continue to keep tabs on any future guidance issued by OSHA, and should be prepared to address potential complaints and issues of mistrust within its workforce.       

As an alternative to using the honor system, an employer could require employees who wish to go without facial coverings in the workforce to provide proof of their vaccination status. As I previously wrote here,  it appears pretty clear employers can request and require proof of vaccination from their employees. Nevertheless, employers should be careful to limit such requests to vaccination status itself (i.e., a simple “are you fully-vaccinated?”) and/or take other steps to avoid engaging in a disability-related inquiry or eliciting unnecessary information regarding an employee’s medical background. Of course, this approach can also lead to uncomfortable situations, including backlash from certain employees and potential assertions that the employer is invading an employee’s privacy by asking about vaccination status or requiring proof (it almost certainly is not).   

Like so many issues that have come up during the pandemic in the last year, this one too is certainly not easy and does not necessarily come with obvious answers for employers. Please contact John Gardner or any other member of DeWitt’s Employment Relations practice group if you need any guidance regarding any of the issues addressed in this article, or other matters related to employment law compliance.