No-Mask Mandates Come with Risks

Allen Smith, J.D. By Allen Smith, J.D. June 7, 2021
Someone serving drinks to two patrons outside

​Employers may want vaccinated employees to remove their face masks while working but should think twice before requiring employees to work without masks. From health, employee relations and legal perspectives, it may be safer for employers to give vaccinated employees the option to work without masks, provided state and local laws allow them to do so.

Some companies may want employees to remove masks to indicate to customers that things are returning to normal, noted Corbin Carter, an attorney with Mintz in New York City. Other employers may want to remove masks based on owners' political ideologies. Removing masks may be a potential retention tool where employees don't want to work with face masks, he added.

Some employers are considering putting only vaccinated people without masks in various positions, such as serving customers at a restaurant, said Robert Duston, an attorney with Saul Ewing Arnstein & Lehr in Washington, D.C.

In states that have adopted the U.S. Centers for Disease Control and Prevention's (CDC's) guidance on masks, removing mask requirements for people who are fully vaccinated now appears workable, Carter said. In those jurisdictions, people who are fully vaccinated generally don't need to wear a mask or physically distance in indoor or outdoor settings, he noted.

"But employers should still tread carefully before requiring the removal of face masks—a viable safety measure—from their workplace solely based on optics, political ideology or for retention purposes," Carter said. "Instead, employers should consider allowing fully vaccinated employees the option to remove their face masks, while imploring everyone in the workplace to respect each individual's decision as to whether to wear a face mask in the presence of others."

The CDC did not address whether employers could require fully vaccinated workers to either continue to wear or remove face masks, Carter said.

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Health Risks

"Employers should think carefully about any policy requiring the continued wearing or removal of masks," Carter said. "With respect to the latter, it could prove problematic because it remains unclear for how long the vaccine will remain effective without a booster and further because some employees are more comfortable wearing a mask." Some remain concerned about deadly viral exposure or vaccine effectiveness. Others are immunocompromised or have relatives who are.

COVID-19 remains a health hazard, and masks are an effective way to prevent the spread of the virus, noted Dan Pyne, an attorney with Hopkins & Carley in San Jose, Calif. "Forcing employees not to wear masks would certainly not enhance safety in the workplace as long as the virus remains present," he said. "Although we have made good progress in defeating the pandemic, we are not yet fully out of the woods. In situations where masks are not required, I see no reason to prohibit employees from electing to wear them if they wish to do so."

Employees have seen the health benefits of wearing masks, including decreased colds, flu and allergies, Duston said. He predicted mask use will remain common, especially in crowded places.

"I am not certain I will ever choose to go without a mask on an airplane again," said Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. "I had to fly a good bit during COVID-19 and I never got sick because I was diligent in wearing a mask, hand sanitizing and avoiding people as much as possible."

She added that COVID-19 will still exist and will likely cause problems, particularly in areas with low vaccination rates. "There are definitely pockets in this country where it remains wise to wear a mask," she said.

Employee Relations Concerns

Some employees may not yet feel safe to abandon precautions that have protected them from the virus so far. "In most situations, employers have no compelling reason to force them to do so before they feel ready," Pyne said.

Employers still may require unvaccinated employees to wear masks, Helms noted. "There may be those who do not want to wear a mask but are required to wear one because he or she is not fully vaccinated," she said. "The employee may not look at it like this, but he or she is choosing to wear a mask by choosing not to be vaccinated."

Given the recent CDC guidance, it would be hard to explain or enforce mask mandates for fully vaccinated employees, Duston said.

Legal Risks

Whether employers can require employees to not wear face masks depends partly on state and local regulations, noted Robin Samuel, an attorney with Baker McKenzie in Los Angeles.

"In some states, such as California, employees are still required to wear face masks and physically distance at work, even if they are fully vaccinated," he said. "This is expected to change by June 15."

Some states, like New York, have issued guidance that allows businesses to either follow CDC guidance for fully vaccinated people or to continue mask and physical distancing mandates for all people regardless of vaccination, Carter said. Other states, like Texas, have done away with mask mandates but still allow businesses to require masks and let individuals choose to wear masks.

The state of Washington requires employers to verify vaccine status before employees can go without masks at work, Samuel said. Most states shift the burden to employers to determine how, if at all, they should verify who is vaccinated, he added.

"To be clear, the CDC's recent guidance still anticipates that individuals who are not fully vaccinated will wear face masks in indoor settings like offices," Carter said. "The CDC may have endorsed a two-tiered system, but employers still need to analyze what works for them in practice."



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