New Mask Rule Creates Complex Dilemma for Employers

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On May 24th, Governor Phil Murphy signed Executive Order 242 that allows fully vaccinated people to go without wearing masks indoors and social distancing in public in accordance with recent guidance from the federal Centers for Disease Control and Prevention (CDC). The CDC had issued new guidance relating to recommended precautions for people who are fully vaccinated. Among other things, fully vaccinated individuals can resume public activities without wearing masks or physically distancing, except where required by federal, state, local laws, rules and regulations.  

Businesses with indoor public spaces, like restaurants and retail, can operate without requiring customers or workers to wear masks or to socially distance based on an honor system.  However, they remain free to require masks if they want to. 

Indoor public spaces do not include indoor worksites of employers that do not open their indoor spaces to the public for purposes of sale of goods, attendance at an event or activity, or provision of services.  Therefore, a typical workplace like a warehouse or manufacturing shop are not considered indoor public spaces, and employers are required to follow their health and safety protocols which remain guided by Executive Order 192 and guidance by the Occupational Health and Safety Administration (OSHA).

Executive Order 192 makes no distinction between fully vaccinated and non-vaccinated employees but permits employees to remove face masks only when employees are situated at their workstations and are more than six feet from other individuals at the workplace, or when an individual is alone in a walled office.

Order 192 also requires employers to follow guidance issued by Occupational Health and Safety Administration (OSHA). While scheduled to update  its guidance consistent with CDC guidance, it still states: “Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”
OSHA may give employers a basis for permitting fully vaccinated employees to dispense with mask-wearing and social distancing but that will pose the problem of what to do with workers who have not, or will not, get vaccinated.
Employers can require workers to show proof of vaccination before allowing them to stop masking and distancing, although workers with disabilities may need to be accommodated.
Join John Sarno for a one-hour discussion on Return to Work and the Post-Pandemic Workplace. June 21, 10-11am. Register here.