CDC’s vaccinated mask guidelines unfeasible, possibly illegal, and difficult to implement in workplace, argues legal expert Kirsten Kowalski
By Kirsten Kowalski, esq.
Special to JenniferMargulis.net
Editor’s note: On May 13, 2021 the CDC announced that fully vaccinated people no longer need to wear masks or socially distance. According to the CDC:
…fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”
Conversely those who do not want or have not yet received the Covid-19 vaccine must continue to wear masks. Following these unvaccinated mask guidelines, some employers are now creating workplace policies to allow vaccinated employees to remove their face coverings. At the same time, they are requiring unvaccinated employees to continue wearing masks.
Kirsten Kowalski, esq., a lawyer based in Georgia, argues that these unvaccinated mask guidelines are unfeasible and potentially unenforceable. Applying different mask and social distancing guidelines to vaccinated employees versus unvaccinated employees raises so many legal issues and creates an enforcement nightmare for employers. The best approach currently, Kowalski argues, is to adopt a uniform policy applicable to all employees equally. Given the current CDC guidance and decline in Covid cases nationwide, employers should allow employees to make their own decisions based on their personal beliefs, health, and risks.
Vaccinated mask guidelines may violate the Americans with Disabilities Act
The Americans with Disabilities Act prohibits discrimination against a person with a disability or perceived disability. This includes people who are Deaf or hearing impaired, people with autism, and people with sensory processing disorders.
The ADA states as follows: “A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
This language applies to ALL employees, not just those with disabilities. An employer may run afoul of this prohibition when the employer asks employees to disclose their vaccination status. Many people cannot safely get vaccinated due to autoimmune disorders, a history of anaphylaxis, or other health conditions. When an employer requires such employees to disclose their vaccination status in order to determine whether such employees must wear masks, employers put these employees in an awkward position. Employers are essentially asking them to defend their unvaccinated status and disclose their private medical conditions.
Singled out and ostracized
Even if the employer makes it clear that the employee is not required to disclose private medical information, these employees end up feeling singled out and ostracized. Put in an awkward position, they may then feel that the employer’s treatment of them is inequitable.
Furthermore, many people have disabilities that prevent them from wearing masks. The CDC’s vaccinated mask guidelines do not account for such individuals. As such, they discriminate against employees and patrons who have a disability that prevents them wearing masks. An employer’s mask policy must account for these individuals. This adds another layer of inquiry an employer must make that could land the employer in murky water under the ADA.
The ADA also protects individuals from discrimination if they are “perceived” to be disabled. By requiring unvaccinated people to wear masks, are we opening the door for perceived disability claims?
If others in the workplace perceive unvaccinated employees to be diseased and contagious and subject the unvaccinated employees to disparate treatment, the employer may find itself facing perceived disability claims. Requiring the unvaccinated to wear a mask could in itself be disparate treatment as the mask could be viewed as the badge of the diseased and contagious.
Vaccinated mask guidelines discriminate against religious minorities
Many individuals are prevented from receiving the vaccine due to their deeply held religious beliefs. Discrimination in the workplace on the basis of religion is a violation of federal and state laws. Treating these employees differently from vaccinated employees opens the door to potential liability for claims of discrimination on the basis of religion. An employer could make an exception for such individuals. However, this further confounds the impracticability of enforcing such a policy.
Many scientists and medical professionals, like this one, warn anyone who is nursing, pregnant, or planning to become pregnant against receiving the COVID-19 vaccine. Treating employees who fall into this category and are therefore unable to receive the vaccine differently from other employees opens the door to potential liability for claims of discrimination under the Pregnancy Discrimination Act.
In violation of OSHA’s regulations
OSHA has released some guidance for employers regarding vaccination requirements. It has stated that if an employer requires employees to be vaccinated and then the employee suffers an adverse reaction to the vaccine, that the adverse reaction is a work-related, recordable event. Employers need to be cautious here. While the employer may not have a vaccine mandate, a “vaxxed or masked” policy could be deemed a vaccine requirement if a court determined that the unvaccinated employees were subject to adverse repercussions due to their unvaccinated status. The OSHA guidance states that the employee’s decision whether or not to receive the vaccine must be “truly voluntary.”
According to OSHA: “An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.” If employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then the vaccine is not merely ‘recommended.’ OSHA further recommends that employers treat vaccinated and unvaccinated employees the same under an employer’s COVID-19 safety policies and procedures.
Note: After I wrote this, OSHA updated its position on injuries resulting from employer mandated vaccines. OSHA’s now stating that it will not enforce its own regulations governing recordable events for a period of one year. Then it “will reevaluate … to determine the best course of action moving forward.” This flip-flopping by OSHA of its position and its apparent confusion and inconsistency over how to enforce its own regulations only serves to highlight the uncertainty and risks employers face with any policy that mandates vaccines. Without clearer guidance employers should tread very carefully.
Differing state laws
Adding to the quagmire facing employers, each state seems to have a different approach to Covid -19, vaccine requirements, and mask mandates. Several states are currently seeking to pass legislation surrounding the vaccines and masks, such as making it illegal for employers to treat employees differently based on vaccination status. For employers that have offices in several states, a vaccinated mask guideline that allows vaccinated employees to go mask-free but requires unvaccinated employees to wear masks may run afoul of certain state laws and executive orders. Even if an employer is comfortable today that its policy complies with state laws, the situation is quite fluid and changes almost daily.
Preferential treatment leads to a hostile work environment
Given the social and political climate currently and the lack of settled science on the issue of Covid-19 and the efficacy of both masks and vaccines, a policy that treats employees or customers differently based on their vaccination status is extremely concerning. Individuals may choose not to receive the vaccine for a number of legitimate reasons. Preferential treatment of employees based on vaccination status opens the door, not only for potential legal liability, but for fear, anger, resentment, and hostility in the workplace.
Employers should generally try to avoid policies that appear to give special treatment to some and appear to single out or punish others. While an employer may not intend its policy to be giving some workers special treatment while punishing others, such a policy may be interpreted that way by the employees which can quickly result in hurt feelings and employees becoming hostile towards each other. The media reports examples of this daily.
Discriminating against people with natural immunity to Covid-19
The CDC current guidelines regarding masks ignore individuals who have had Covid-19 and have recovered. Likewise, a “vaxxed or masked” employer policy ignores Covid-19-recovered employees. While the CDC has failed to address this, the National Institutes of Health acknowledge that individuals who have recovered from Covid-19 have robust immunity that is long lasting. This natural immunity may exceed the immunity provided by vaccines.
Furthermore, there is concern within the scientific and medical community that such individuals are at higher risk for adverse reactions to the vaccines.
Any employer-mandated mask policy that purports to be about protecting the health and safety of employers must take Covid-19-recovered individuals into consideration. To allow vaccinated employees the right to forgo wearing masks while mandating that employees who have recovered from Covid-19 who are unvaccinated wear masks is a policy not based in science or logic. It may be discriminatory and is therefore ripe for legal scrutiny.
Employment policies that infringe on an employee’s basic rights must be based on an employer’s legitimate business interest. If an employer’s business interest is providing a safe work environment, that interest is actually better served by employing individuals with natural immunity to the virus.
For an employer to ignore this subset of their employees could work to prove that the employer’s stated interest is illegitimate, therefore opening the door to such policies being deemed unenforceable or discriminatory.
Vaccinated mask guidelines: Enforcement
Enforcement of any company policy requires diligence, consistency, and documentation. Without this, a company runs the risk of claims of preferential treatment. The CDC’s vaccinated mask guidelines largely depend on the truthfulness of an employee about their personal medical choices. Monitoring and policing this may prove extremely difficult. Moreover, it may result in situations where the policy is not uniformly or accurately applied. Prior to implementing any such policy, managers and other employees would need written guidance on what is and is not appropriate with regards to enforcing the policy. Each manager must be briefed on potential enforcement issues in light of the Americans with Disabilities Act and religious protections.
Questions employers must ask prior to following the CDC blindly down this path of treating people differently based on vaccination status:
How do we plan to enforce this policy? Can we apply it consistently and uniformly?
Will we ask employees to provide proof of vaccination status?
How long are the vaccines effective and how often will we require employees to update their vaccination status?
Must employees sign an affidavit that they have been vaccinated? What about patrons?
Will patrons be asked their vaccination status? If so, how will we ask that they prove it?
What happens if someone says they are vaccinated but cannot or will not provide their medical records? Perhaps citing privacy reasons, or simply that they don’t have the record with them?
How do we ensure that employees don’t lie?
What if an unvaccinated employee or patron removes their mask? Are we prepared to fire employees and/or eject clients or other patrons from our place of employment?
Are our managers in each office capable of being consistent with enforcement?
Any employer who is unable to answer these questions or is concerned with its ability to enforce the policy should carefully reconsider enacting such a policy.
No legal or scientific precedent
The issues here are complex. In part because they are unprecedented, both legally and scientifically. Case law that is directly on point does not exist. As such, employers cannot look to precedent for guidance. Likewise, the science surrounding Covid-19 and the vaccines is far from settled. In addition, the guidance from the CDC changes almost daily. For that very reason, employers need to be extremely cautious in following the CDC down a path that encourages preferential treatment for employees and patrons based on vaccination status.
About the author: Kirsten Kowalski is a lawyer and author living in Vero Beach, Florida. She earned her B.A. in Journalism from Sanford University in 1993. Then graduated from Cumberland School of Law in 1996. She worked as a Civil Rights attorney for several years before transitioning to corporate and contract law. Licensed in Georgia and Alabama, Kirsten Kowalski currently serves as General Counsel to a Georgia full-service real estate company. In 2019 she published her first novel, Becoming Home.