Category Archives: OSHA

OSHA Suspends Emergency COVID-19 Vaccination and Testing Standard

Contributed by guest author Matthew Horn, November 18, 2021

In September, the Biden Administration directed OSHA to issue an Emergency Temporary Standard (“ETS”) requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis.  That promised ETS was published on November 5, 2021, and linked here are OSHA’s summary of the ETS and the FAQ’s relating to the ETS.   

One week later, on November 12, 2021, the 5th Circuit Court of Appeals issuing a scathing opinion staying the enforcement of the ETS.  In the week that followed, legal challenges were brought in every other Circuit Court of Appeals across the country.  On November 16, 2021, the matter was assigned through a lottery to the 6th Circuit Court of Appeals, which has jurisdiction over Michigan, Ohio, Kentucky, and Tennessee.  If the 6th Circuit upholds the stay of the ETS—which seems more likely than not—then the ETS will remain stayed while the issue proceeds to the U.S. Supreme Court.  If the 6th Circuit lifts the stay of the ETS, then the ETS could potentially go into effect while the issue proceeds to the U.S. Supreme Court. 

On November 17, 2021, OSHA formally acknowledged that it had suspended all activities related to the implementation and enforcement of the ETS.  However, OSHA and the Biden Administration have vowed to continue the fight and implement the ETS if/when allowed, so at this juncture, we continue to recommend that employers plan and prepare for the potential implementation of the ETS—namely, preparing the required policies and compiling a roster of employees who have been vaccinated (and those who have not).  

For a more thorough discussion of the ETS, the pending legal challenges, and our recommendation moving forward, please see our recent webinar on these issues. We will continue to keep you advised as to the status of the ETS and the related legal challenges. 

OSHA Releases COVID-19 Vaccination and Testing Rule for Private-Sector Workers

Contributed by Peter E. Hansen and John R. Hayes, November 4, 2021

doctor hand wears medical glove holding syringe and vial bottle with covid 19 corona virus vaccine

The United States Department of Labor released a long-awaited Emergency Temporary Standard (“ETS”) for private employers with over 100 employees. The 490 page interim final rule answers a number of questions employers have had since the Biden Administration announced its plan in September, including:

What is the application to employers?

The ETS applies to employers with 100 or more employees as of November 5, 2021, regardless of the number of employees working at a specific location. The ETS does not, however, apply to employers covered by the CMS rule or federal contractors, so health care providers (other than physician groups) should review the CMS rule and federal contractors should follow the guidance published by the Safer Federal Workforce Taskforce.

The 100 employee count includes part-time, temporary, and seasonal employees, as well as home workers – however, employees who work exclusively outdoors and/or at home are not subject to the mandatory vaccination/testing requirements.

Do employers have to adopt a COVID-19 policy?

Employers must develop, implement and enforce either: (1) a mandatory vaccination policy; or (2) a policy requiring employees to either get vaccinated or test once a week and wear a face covering at work. 

Employers choosing to implement the mandatory vaccine policy should start with OSHA’s sample policy, available here. It contains all the necessary information that an employer needs to implement a vaccine mandate policy in compliance with the ETS. Specifically, it contains information for employers to use regarding vaccination dates, acceptable supporting documentation of vaccination, employee notification and removal from the workplace with a positive COVID-19 test, and information on testing and masking requirements.

Employers who instead decide to have an optional vaccine policy with mandatory weekly testing must also have a written policy, OSHA template available here.  If the employer goes with this option, it must “establish, implement, and enforce a written policy allowing any employee not subject to a mandatory vaccination policy to either choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering in lieu of vaccination.”  Similar to the vaccine mandate policy, the testing policy contains all the relevant information for the mandatory weekly testing and mask wearing, as detailed in the ETS.

If the employer adopts a mandatory vaccination policy, can employees request a religious or medical exemption?

Yes, employers who adopt mandatory vaccination policies cannot require vaccination for employees:

  1. For whom a vaccine is medically contraindicated;
  2. For whom medical necessity requires a delay in vaccination; or
  3. Who are legally entitled to a reasonable accommodation because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

Do employers have to provide paid leave for employees to get vaccinated?

Employers must provide up to 4 hours of paid leave for employees to become vaccinated and, if necessary, “reasonable time and paid sick leave” to recover from side effects experienced that prevent them from working.

What are the testing requirements and do employers need to pay for testing?

The ETS provides several examples of testing that would satisfy the weekly requirements, including tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.  Testing cannot be both self-administered and self-read.

The ETS clarifies that employers do not need to provide or pay for weekly testing for unvaccinated employees — unless required by other laws, regulations, employment contract, and/or collective bargaining agreements.  For example, employers would typically need to pay the cost of testing for employees who receive a medical or religious exemption from a mandatory vaccination policy.

What are the upcoming vaccine deadlines?

Employers must begin providing paid time off to get vaccinated and/or recover from vaccination, and implement face mask requirements, by December 5, 2021.  The deadline for employees to become fully vaccinated – meaning the deadline to have received their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – is January 4, 2022.

Are employers required to keep records of employee vaccinations?

Employers must obtain and keep proof of vaccination from employees. Documentation should generally include the name of employee, which vaccine was received, name of the healthcare provider, and date of vaccination. For unvaccinated employees, employers must maintain a record of each test result the unvaccinated employee is required to produce. Notably, the recordkeeping requirements apply only while the ETS remains in effect.  During that time, they must be treated like any other confidential medical record.

Can OSHA request access to policies and records?

Employers must provide OSHA with access to their written policy and the aggregate number of vaccinated and unvaccinated employees within 4 hours of a request, and any other records and documents “by the end of the next business day after a request.”

What is the deadline for federal contractors to be vaccinated?

The date for the implementation of the federal contractor vaccine mandate Executive Order is also moved from December 8, 2021 to January 4, 2022.

We will provide updates as we continue to closely analyze the ETS.  In the meantime, OSHA’s webinar and FAQs on the ETS are extremely helpful (albeit dense) and address a wide range of issues. 

Budget Bill Increases OSHA Fines Five-Fold

Contributed by Matthew Horn, September 30, 2021

In an aggressive effort to pressure employers into complying with the Biden Administration’s promised vaccine mandate, House Democrats buried an approximate five-fold increase to OSHA fines in their $3.5 trillion budget reconciliation bill, seeking to increase the maximum fines for a “serious” citations from $13,653 to $70,000 and for “repeat” and “willful” citations from $136,530 to $700,000. The incredible fine increase stems from OSHA’s concern that employers are ignoring its COVID-19 guidance and standards because the risk of non-compliance is less than the cost of compliance.  OSHA apparently intends to address that concern by going after non-compliant employers with unprecedented fines. 
 
Hopefully, the bill ultimately passed does not include the increased OSHA fines outlined, and we will keep you informed on that issue as the bill progresses.  Regardless, employers should prepare now for an extremely aggressive OSHA largely focused on COVID-19 enforcement and making headlines.

OSHA to Issue Mandatory Vaccination and Testing Rule for Certain Employers

Contributed by guest author Matthew Horn, September 9, 2021

In a purported effort to increase vaccinations, the Biden Administration just announced its plan to have OSHA issue an Emergency Temporary Standard requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis. The Emergency Temporary Standard will also require mandatory vaccinations for: 1) federal employees; 2) employees of federal contractors; and 3) employees at healthcare facilities receiving Medicare or Medicaid. The Emergency Temporary Standard will impact approximately 100 million American workers. 

Since the announcement was made today, and not many details were provided, applicable employers will have some time—possibly a few months—to process and comply with the new requirements. Additionally, while the rule making process is taking place, there will be no shortage of legal challenges to the planned rule. Moving forward, we will keep you advised as to any and all updates on this issue.

OSHA Revises Its Mask Guidance and Encourages Vaccination of Employees

Contributed by Rebecca Dobbs Bush and Matthew Horn, August 17, 2021

Blue medical face masks isolated on white

Following the Centers for Disease Control’s updated mask and COVID-19 guidance dated July 27, 2021, OSHA finally updated its own mask and COVID-19 guidance on August 13, 2021. The updated guidance can be viewed here.  

Under the new guidance, OSHA recommends that employers require their employees—even those who are fully vaccinated—to wear masks when indoors in areas of substantial or high transmission of COVID-19.  Areas of substantial or high transmission are determined by county and updated by the CDC daily. The CDC’s updated map showing transmission rates by county can be viewed here.  As of today, the vast majority of the counties around the country are considered areas of substantial or high transmission, thereby implicating the updated guidance. 

The new guidance also recommends that fully vaccinated individuals with known or suspected exposure to COVID-19 be tested 3-5 days after exposure, and wear a mask while indoors for 14 days or until they receive a negative test result. Additionally, OSHA emphasizes that vaccination of individuals is the best way to prevent severe illness or death from COVID-19, and recommends that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing. Prior to this updated guidance, OSHA had only published this recommendation for healthcare employers.

If your business operates indoors in an area of substantial or high transmission, we recommend that you require all employees and visitors to wear a mask regardless of vaccination status. However, given the language of its press release and updated guidance, OSHA appears hesitant to enforce this updated guidance—likely acknowledging that many employers will struggle with the implementation of ever-changing mask rules based on local transmission rates.

OSHA ETS: What Health Care Providers Need to Know

Contributed By John R. Hayes, June 18, 2021

On June 10, 2021 OSHA issued its COVID-19 Emergency Temporary Standard (ETS) for the health care industry, along with general guidance for all other employers, which we already touched on in a previous post. However, there remains a lot to unpack, as there are many unanswered questions, especially for the health care field.  Below we dig a bit deeper into the ETS and its practical implications for health care providers.

Are you covered? The first question—and it is not as clear cut as it may seem—is whether the ETS applies to your business. OSHA has issued a flowchart to attempt to answer this question. However, it still remains murky for some. Generally, the ETS applies to settings where coronavirus patients are treated (including hospitals, nursing homes and assisted living facilities) and covers “all settings where any employee provides health care services or health care support services.” These are defined as:

  • Health care services are services that are provided to individuals by professional health care practitioners (doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health, and are delivered through various means including hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport.
  • Health care support services are services that facilitate the provision of health care services, which include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, health care laundry services, medical waste handling services, and medical equipment cleaning/reprocessing.

The ETS contains several exemptions to its coverage, and it does not apply to:

(1) the dispensing of prescriptions by pharmacists in retail settings;

(2) non-hospital ambulatory care settings (outpatient settings such as doctor’s offices) where all non-employees are screened before entering and people with suspected or confirmed COVID-19 are not allowed to enter;

(3) well-defined hospital ambulatory care settings and home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings or are not present;

(4) health care support services not performed in a health care setting (off-site services); and

(5) telehealth services performed outside of a setting where direct patient care occurs. 

Moreover, in certain situations, such as where a health care setting is embedded with a non-health care provider (such as a medical clinic in a manufacturing facility), the ETS applies only to the embedded health care setting and not the other parts of the facility. 

Also, in well-defined areas in a health care setting where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present the ETS provisions for PPE, physical distancing, and physical barriers do not apply to fully vaccinated employees. To meet this exception, the COVID-19 plan for the employer must include policies and procedures to determine employee vaccination status.

ETS Mandates. If you are an entity covered by the ETS, then what exactly does it require of you? The main requirements are what you have likely had in place throughout the pandemic:

  • Development of a COVID-19 plan. This applies to all covered employers with 10 or more employees.
  • Provide PPE and ensure employees properly wear facemasks that meet OSHA standards when physical distancing is not possible.
  • Cleaning, disinfecting, installing barriers and maintaining social distancing. 
  • Follow general screening and management practices for COVID-19. 
  • Record Keeping/Reporting. Employers must retain all versions of their COVID-19 plan, log and record each instance an employee is COVID-19 positive whether or not the infection was at work, report each work-related COVID-19 fatality and in-patient hospitalization within 24 hours.
  • Vaccination PTO. Employers must provide reasonable time and paid leave for employees to receive COVID-19 vaccinations and recover from any side effects. OSHA defines “reasonable time” as four hours of paid leave for each dose, and 8 hours of leave for any side effects of the dose.
  • Training on the basics of COVID-19 and employer and workplace specific policies on all other ETS requirements, such as screening, cleaning, and sick leave policies.

Medical Removal Protection (MRP) Benefits. Employers with more than 10 employees must provide paid leave to employees if the employee is removed from the workplace under the ETS – basically if the employee is unable to work due to COVID-19 or COVID-19 exposure, regardless of whether the employee was exposed at work or outside the workplace.

  • For employers with more than 10 but fewer than 500 employees, the employee is entitled to their regular rate of pay, up to $1,400 per week for the first two weeks.  Beginning in the third week, if the removal continues that long, then the employee shall receive two-thirds the rate of their regular pay, up to $200 a day. 
  • For employers with 500 or more employees, the employer must pay up to the $1400 cap each week during the entire period of removal, until the employee meets the return to work criteria, which must be made in accordance with guidance from a licensed health care provider or applicable guidance from the CDC.
  • For all employers with more than 10 employees they must continue to provide the benefits to which the employee is normally entitled.
  • The employer is not required to provide overtime pay, even if the employee had regularly worked overtime hours in recent weeks.
  • The employer may reduce the amount paid to the removed employee by compensation the employee receives for lost earnings from any other source, such as employer-paid sick leave or other PTO.
  • For employers with fewer than 500 employees, tax credits are available under the American Rescue Plan for voluntarily provided COVID-19 sick leave through September 30, 2021.

Implementation Timeline. Covered employers must comply with most provisions of the standard within 14 days of publishing, and with the provisions regarding physical barriers, ventilation, and training within 30 days. OSHA states it will use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS. However, OSHA has made no secret it is overall increasing its enforcement, and is encouraging more in-person inspections. Employers who believe they may be subject to the ETS should review it carefully and consult with experienced employment counsel regarding their obligations under the ETS.

OSHA Issues its Emergency COVID-19 Standard

Contributed By Matthew Horn, June 10, 2021

On June 10, OSHA issued its long-promised COVID-19 Emergency Temporary Standard (ETS).  Surprisingly, the ETS relates only to the healthcare industry, but updated guidance has been issued for all other industries, as outlined below:
 
Non-Healthcare Industries: For non-healthcare industries, including manufacturing and construction, OSHA only intends to continue issue guidance relating to COVID-19, including updated guidance on complying with the CDC’s latest recommendations. Notably, the updated guidance exempts fully vaccinated workers from wearing masks, distancing, and barrier requirements when in areas where there is no reasonable expectation that any person will be present with suspected or confirmed cases of COVID-19.
 
Healthcare Industry: The ETS applies strictly to the healthcare industry, and focuses on healthcare workers most likely to have contact with someone infected with the virus, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care settings—where suspected or confirmed COVID-19 patients are treated.
 
The ETS largely requires these facilities to continue to comply with precautions already in place, codifying well-known requirements such as conducting a hazard assessment, adopting a written COVID-19 plan, providing employees with PPE and respirators as appropriate, distancing, erecting barriers, screening entrants for COVID-19, disinfecting and sanitizing exposed areas, and others. The ETS does add a few new requirements, however, requiring employers to prepare a “COVID-19 log” listing all employee cases of COVID-19 and provide workers with paid time off to get vaccinated and recover from any side effects. Covered employees who have COVID-19 or who may be contagious must also be required to work remotely or quarantine, being provided paid time off, up to $1,400 per week. For most employers with fewer than 500 employees, these costs may be reimbursed through the provisions of the American Rescue Plan.
 
Notably, we expect OSHA to use the ETS – and the pandemic itself – as part of its on-going effort to unionize more employers in the healthcare industry. 

Save the Date! Complimentary Webcast, May 24th: Mask Mandate Mayhem! A Briefing for Confused Employers

On May 13, 2021, the CDC issued new guidance stating that those who are fully vaccinated can resume activities without wearing a mask or social distancing. Following the CDC guidance, on May 17, 2021, OSHA updated its website to refer business and employers to the CDC guidelines. The door has been opened to employers and businesses to allow employees to be in the workplace without a mask, if they are fully vaccinated, but has not provided any guidance or direction on how to do so, or even made clear that employers and businesses are allowed to.

Moreover, state and local requirements and guidance have had mixed responses to the CDC and OSHA changes. What is expected of businesses and employers at this point is unclear – so what should you do?

Join Mike Wong and Carlos Arévalo on Monday, May 24 @ noon CT for a 30 minute briefing on what to expect in the coming months. Topics will include:

  • Risks of worker compensation claims
  • Reasonable accommodations under ADA and Title VII
  • Navigating federal, state, local, tribal or territorial laws, rules, and regulations

Don’t miss this timely webcast!

UPDATED: I Don’t Want to Wear a Mask…Part 4: OSHA Weighs In!

Contributed By Michael Wong, May 17, 2021

Blue medical face masks isolated on white

***On May 17, 2021, OSHA updated its web page regarding “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” to state the following:

“The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

The CDC’s May 13, 2021 guidance “Interim Public Health Recommendations for Fully Vaccinated People” states that fully vaccinated people can “Resume activities without wearing masks or physically distancing, EXCEPT where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. Fully vaccinated people should also continue to wear a well-fitted mask in correctional facilities and homeless shelters. Prevention measures are still recommended for unvaccinated people.”

However, the CDC has not made any changes to its workplace guidance regarding the use of masks. In particular, the CDC still advises employers to “encourage employees to wear face coverings in the workplace, if appropriate”, and does not differentiate between those who have been vaccinated and those who have not. 

Finally, even though the CDC and OSHA have issued this guidance, a patchwork of state and local policies or rules are popping up making it clear that an “across the board” mask-free workplace is not without legal risk for employers.

What does this mean for the workplace?

OSHA’s updated reference to the CDC’s guidance has essentially made this issue a little more clear. In doing so though, OSHA and the CDC has opened the door to employers and businesses allowing employees to be in the workplace without a mask, if they are fully vaccinated, but has not provided any guidance or direction on how to do so. The risk of OSHA issuing a fine or penalty on this issue has been reduced as long as the company is taking common sense steps to protect its employees, which could include (i) requiring verification or confirmation by employees that they have been fully vaccinated before allowing them to be mask free in the workplace; and (ii) modifying guidance to allow employees who have been vaccinated to not wear a mask in the workplace, unless interacting with or in a part of the business where there are customers, clients or the public.

In considering revised policies, employers should remember that there is still risk from workers’ compensation claims. While being vaccinated reduces the possibility of getting COVID-19, if an employee is not wearing a mask in the workplace and gets COVID-19, the employer could still face a workers’ compensation claim that the employee got COVID-19 at work. 

With respect to customers or clients coming into the business, the issue is even muddier, as the CDC and OSHA guidelines are unclear on what is expected of businesses and employers at this point. For example, if a business allows customers or clients into the business without a mask, do they have to verify that they have been vaccinated? Moreover, there is no guidance on what questions a business could ask a customer or client to confirm if he or she has been vaccinated. 

As such, this still means that training, education and communicating with employees and customers will be vital within the next few weeks and months. Many employees and customers will hear about the federal “unmasking,” but will not understand that it does not apply to employers or businesses based on state or local requirements or guidelines.

Training for employees should include methods on addressing, managing and de-escalating conflicts with customers and between employees. In particular, re-emphasizing and educating employees on how to communicate the business’ policies and more importantly the reason why the business’ policies may not have changed.

Finally, don’t forget that employer and business obligations regarding reasonable accommodation of disabilities and religious beliefs under the ADA and Title VII are still in place.

Due to the complexity and interplay of federal, state, local, tribal or territorial laws, rules and regulations, including CDC, OSHA and state and local health departments and governments, it is important to use legal counsel experienced and knowledgeable in labor and employment law to help you navigate these waters.

For further information on this matter, keep an eye out for our timely webcast, “Mask Mandate Mayhem! A Briefing for Confused Employers” on Monday, May 24th at Noon CT.  

I Don’t Want to Wear a Mask…Part 3: Land of the Mask Free and Home of the Brave

Contributed By Michael Wong, May 14, 2021

Blue medical face masks isolated on white

On May 13, 2021, the CDC issued new guidance stating that those who are fully vaccinated can resume activities without wearing a mask or social distancing. Following the CDC’s announcement, President Biden lifted the mask mandate that was required by staff and visitors of the White House.  

While the CDC has issued this guidance, a patchwork of state and local policies or rules are popping up making clear that we are not going to be mask free quite yet. More importantly, the CDC’s announcement contained a big “EXCEPTION” by stating “except where required by federal, state, local, tribal or territorial laws, rules and regulations, including local businesses and workplace guidance.”

To be clear, the CDC has not made any changes to its workplace guidance regarding the use of masks. The CDC guidance still advises employers to “encourage employees to wear face coverings in the workplace, if appropriate.” More importantly though for employers, OSHA still states that employers and businesses should require the use of face masks and emphasizes that “employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious harm. In fact, President Biden’s “lifting of the mask mandate” for staff and visitors could potentially be considered a violation of CDC and OSHA guidance regarding workplaces.

Employer and business compliance with CDC and OSHA Guidelines is still very important, especially with the potential for fines. Recently, OSHA issued a $136,532 penalty and citation to a Massachusetts company for prohibiting employees and customers from wearing face coverings in the workplace and requiring employees to work within six feet of each other and customers for multiple hours while not wearing face coverings, finding that the company’s actions put its employees safety at risk of recognized hazards that are causing or likely to cause death or serious physical harm.

The issue gets even more complicated at the state and local level. Some states, including New York, New Jersey, North Carolina, and Maine, have advised that they will not be modifying their mask mandates at this time. Many other states, including Illinois, Kentucky, Minnesota, Nevada, Oregon, Pennsylvania, Connecticut, and California have begun adjusting their mask mandates and guidance (including setting dates for them to tentatively end).  While other states, including Alabama, Arkansas, Iowa, Mississippi, Montana, New Hampshire, and Texas, have already rescinded their statewide mask mandates. To make things even more confusing, even in the states that have rescinded the state wide mask mandates, some local governments have maintained mask mandates including those for employees and/or customers. Then to make it even more unclear, Indiana just passed a law stating that the decision regarding masks is now controlled by city councils and mayors/elected officials and not local health officers. At least one county in Indiana, Marion County, which covers Indianapolis and its surrounding suburbs, has already had its City Council vote to continue its mask mandate.

What does this mean for businesses?
This means that businesses must still require employees to wear masks in the workplace and must still require customers coming into the business to wear masks unless otherwise allowed by state or local guidelines, and even then you are still required to comply with OSHA requirements.

This also means that training, education and communicating with employees and customers will be vital within the next few weeks and months. Many employees and customers will hear about the federal “unmasking,” but will not understand that it does not apply to employers or businesses based on state or local requirements or guidelines. Moreover, as OSHA has now made clear by fining businesses, there are repercussions for employers and businesses violating the face mask requirements and guidance. 

Training for employees should include methods on addressing, managing and de-escalating conflicts with customers and between employees. In particular, re-emphasizing and educating employees on how to communicate the business’ policies and more importantly the reason why the business’ policies have not changed. This is vitally important to avoid “viral videos” of confrontations as businesses will no longer be able to point to a presidential mandate or executive order to validate mask policies. Rather, businesses will have to educate employees and customers on federal, state and local requirements and guidelines for businesses and make clear that the “mask free” announcement for those with vaccinations are limited to public and social activities and not so much the workplace, business interactions and shopping. 

Finally, don’t forget that employer and business obligations regarding reasonable accommodation of disabilities and religious beliefs under the ADA and Title VII are still in place. 

Due to the complexity and interplay of federal, state, local, tribal or territorial laws, rules and regulations, including CDC, OSHA and state and local health departments and governments, it is important to use legal counsel experienced and knowledgeable in labor and employment law to help you navigate these waters.