Should Employers Rescind Their Mask Mandates? A Pros and Cons List to Consider Before Dropping Your Pandemic Policies

As expected, state and local mask requirements continue to be lifted following the CDC’s loosening of its masking recommendations last month. As of today, only 10 states require masks – and many of those requirements apply only in certain limited settings, such as in the healthcare context, shelters, residential care facilities, and schools. The lifting of these governmental mask mandates raises the question of whether employers should continue to require masks in the workplace as a matter of internal policy. There’s no “one size fits all” answer to this question. Rather, each business should weigh the pros and cons of requiring masks in their workplace and decide what’s best for their particular locations and circumstances. 

What Does the Law Say?

Importantly, the CDC still recommends that masks be worn in places of high transmission. As of today, that covers only about 15% of the country and that number has been decreasing.  Employers who don’t follow the recommendations of the CDC (and applicable state and local health departments) do so at their own peril. That’s because OSHA or a state OSHA agency can – and often does – cite employers under the “General Duty Clause,” using the failure to follow recommended safety measures (i.e. CDC recommendations) as the basis for the alleged violation.

The General Duty Clause of the OSH Act broadly requires that employers provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This clause has served as OSHA’s COVID-19 workhorse, as the agency has not successfully issued new specific pandemic-related standards applicable to most employers but repeatedly cited employers under the General Duty Clause for failures related to masking.

While OSHA looks to CDC recommendations in issuing its own guidance documents for employers related to COVID-19 and workplace safety, it has not yet updated them to reflect the CDC’s recent relaxation of masking recommendations.

It is therefore prudent for employers to continue to require masks, regardless of vaccination status, in places of high transmission and to continue to track the CDC Date on Community Transmission Levels to make sure your workplaces are not in a place of high transmission. In places of “medium” or “low” transmission, the CDC does not currently recommend masks (except in areas designated as “medium,” where it recommends that those who are immunocompromised or at high risk for severe illness should confer with their doctor about whether to wear a mask). That means in these areas it is up for the employers to decide what to do.

Finally, before brainstorming about possible next steps, make sure you understand the lay of the land in your own state. 

Pros and Cons of Lifting Mask Requirements

Once you understand the lay of the land, you’re ready to consider the various pros and cons associated with removing mask requirements at your business.

Pros:

• Many employees are ready to stop wearing masks and have begun doing so when not at work.
• As other employers lift their mask mandates, not doing so could hurt efforts to attract and retain talent. In today’s competitive labor market, this is a particularly relevant concern.
• Mask mandates are difficult to enforce, especially if the requirement is based on vaccination status.
• Mask mandates may create resentment from and between employees, especially if based on vaccination status.

Cons:

• As noted, it is prudent to keep masks in place at least in areas of high transmission. For national employers, this may mean different policies in different locations which can create logistical and communication issues.
• Recognize that you could open yourself up to an OSHA inspection (which you can track here) or a General Duty Clause citation if you drop your mask mandate too quickly or in an inopportune setting.
• While COVID-19 cases have been decreasing steadily, this was also the case in mid-2021. While we hope not to endure another dramatic spike in cases (reminiscent of the Delta and Omicron variants), one certainly could arise. So employers who lift their mask mandates need to accept the risk that they may have to reinstate them at some point (at least in some areas). As we’ve seen with stay-at-home recommendations, for example, putting the genie back in the bottle is not easy.
• While not everyone agrees on the degree of protection, masks clearly help in preventing transmission of COVID-19. As such, not requiring masks increases the chances of employees getting the virus, which could place stress on your workforce (and, in some locations, require you to provide paid leave).

What Businesses and Employers Should Do as CDC Loosens COVID-19 Mask Guidelines

As most states lift their mask mandates, the Centers for Disease Control and Prevention (CDC) announced Friday (2/25/22),  that the agency has adopted new metrics for determining whether to recommend face coverings – a shift that will result in most Americans no longer being advised to wear masks in indoor public settings. By moving away from looking solely at the number of COVID-19 cases in a given area but instead taking into account local hospitalizations and hospital capacity, the updated metrics will create room for businesses and employers to revisit their own approaches to masking policies. What should you know about these changes before making a decision for your organization?

What Changed?

The CDC’s previous guidelines recommended that fully vaccinated individuals residing in communities of substantial or “high” transmission wear a mask in indoor public settings. Given that the standards solely examined the positivity rate of COVID-19 cases in a community, roughly 95% of counties in the United States met the definition of substantial or high transmission.

The metrics used to determine whether to recommend masks will now take a more holistic view of the risk COVID-19 to a community. The number of COVID-19 cases will still but considered, but hospitalizations and local hospital capacity will also be taken into account. 

The CDC adopted “COVID-19 Community Levels” of “Low,” “Medium,” and “High” to help communities decide what recommendations and requirements to put in place. The CDC has provided a “COVID-19 County Check” tool to find the community level in a particular county and the prevention steps recommended for that county.

• Under the updated guidance, only those living in areas of “High” COVID-19 community levels are encouraged to wear a mask indoors in public, regardless of vaccination status. As of the CDC’s announcement, only 37% of counties in the U.S. fall into this category.
• In areas designated “Medium,” the CDC recommends that individuals who are immunocompromised or at high risk for severe illness should talk to their healthcare provider about whether to wear a mask or not. But all others in these areas – amounting to nearly 40% of U.S. counties – are no longer advised to wear a mask in these areas.
• In areas designated “Low,” the CDC leaves the decision of whether to wear a mask or not up to each person individually, based on personal preference and personal level of risk. 23% of counties are currently classified at the low-risk level.

Given the highly transmissible but less severe nature of the omicron variant, masks will no longer be recommended for the vast majority of Americans, including those who remain unvaccinated.

What Should Employers and Businesses Do?          

The CDC’s new guidance provides important considerations for employers who have been considering rescinding their masking policies. Even though CDC guidance is not directly binding on employers, it is critically important. That’s because while OSHA has not yet expressly adopted the most recent CDC guidance, OSHA’s guidance repeatedly refers to CDC guidance.

Employers should review their local and state masking requirements and continue to comply with those requirements. For employers in areas where a mask mandate is no longer in place, they should review the CDC’s latest guidance and utilize the COVID-19 County Check tool to make an informed decision regarding their mask policy.   

Employers who lift their mask mandate should make sure that employees who continue to voluntarily wear a mask do not face illegal mistreatment at the hands of supervisors or coworkers. Make sure your employees know that retaliation, discrimination, and harassment will not be tolerated, and include this prohibition in written policies distributed to all workers.