The Centers of Disease Control and Prevention (CDC) provided new guidance regarding vaccinated people, stating that vaccinated people do not have to wear a mask or maintain social distancing unless federal, state, local, or tribal laws require otherwise. In addition, the CDC guidance does not apply in every industry. For example, all individuals, regardless of vaccination status, must continue wearing masks when they travel via public transportation.
Be sure to follow state and local laws
Given the CDC’s new guidance, employers may want to establish different policies for vaccinated versus unvaccinated employees. Based on this guidance, the CDC, in effect, permits employers to differentiate between vaccinated and not vaccinated employees. It is important to note, however, that the CDC’s new guidance is just that: guidance. Employers should ensure that their state and local laws do not require all employees to wear masks and/or maintain social distancing, regardless of vaccination status. If there is a conflict between state and/or local law and the CDC’s new guidance, employers must follow state and/or local law.
Do not discriminate
If state and/or local law is consistent with the CDC’s new guidance, employers must still be careful to not discriminate between vaccinated and not vaccinated employees. Employers must also be careful to not establish policies that violate the Americans with Disabilities Act (ADA). To prevent potential issues in the workplace, employers can establish policies prohibiting employees from asking each other about their vaccination status and establishing clear protocol for mask-wearing, such as reporting procedures where an employee violates the mask-wearing requirement.
Given the potential for employers to differentiate between vaccinated and not vaccinated employees, it may make sense for employers to inquire about an employee’s vaccination status. For more information on such inquiries, click here.
Employers should also stay informed of updates from the Equal Employment and Opportunities Commission (EEOC) and the Occupational Safety and Health Administration (OSHA). Both agencies are currently reviewing best work practices in light of the CDC’s new guidance.
Updated May 25, 2021
