Employers Contend with Conflicts over Masks, Vaccinations

Allen Smith, J.D. By Allen Smith, J.D. June 4, 2021
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a check-out clerk wearing a mask and gloves

​The U.S. Centers for Disease Control and Prevention's (CDC's) recent guidance on masks has encouraged some vaccinated employees to go maskless in the workplace. While the guidance may result in more people receiving COVID-19 vaccinations and ease the return to the workplace, workers who oppose vaccinations may be frustrated by rules that still require them to wear masks. This frustration is one of several contributing to mask- and vaccination-related workplace tensions.

The CDC's new guidelines allowing vaccinated workers to remove masks "has created a two-tiered system in many workplaces," said David Barron, an attorney with Cozen O'Connor in Houston. Vaccinated workers are relieved of masking and other COVID-19 precautions, while nonvaccinated workers must continue to follow safety rules.

"Understandably, this may create division in the workplace and anger from those who continue to be held to the extra safety precautions, especially as the news improves and the need for the continued precautions may be hard to understand," he said.

At organizations that let vaccinated workers remove masks, there will be conflicts as some nonvaccinated workers also may want to remove their masks and test employers' ability or desire to enforce the rules, Barron said.

"Vaccinated workers may also feel anxious or uncomfortable removing masks around nonvaccinated workers, which could create arguments and division in the workplace," he said. "Companies should make sure to emphasize the importance of respecting co-workers' views on masking and avoid teasing or differential treatment of employees based on mask wearing."

Some employees, even if vaccinated, may want to wear masks well into the future, or even permanently, when around co-workers or in large groups, Barron said.

Other vaccinated employees may want to now work maskless, noted Anthony Mingione, an attorney with Blank Rome in New York City. "The vaccinated maskless espouse the view that they have consistently followed CDC guidelines, mask mandates and work rules throughout the pandemic and should now be entitled to relax the strict measures from the height of the COVID-19 pandemic," he said. "This growing group represents the middle ground between those who have been resistant to the various safety measures all along on the one hand and those who feel that it is too soon to relax those rules on the other hand."

Onsite Vaccinated Workers vs. Remote Unvaccinated Employees

"One of the main vaccine-related conflicts we are seeing is the clash between vaccinated workers who have returned to the employer's physical premises and unvaccinated workers who continue to work remotely," Mingione said.

"Many times, vaccinated employees feel like they are being unfairly forced to shoulder work responsibilities for unvaccinated colleagues," he said. "Often these feelings are misplaced, as many employees remain remote due to issues unrelated to personal vaccine choices, with the lack of available child care near the top of the list of those reasons."

At some employer sites, some vaccinated employees are demanding that those who are not yet fully vaccinated remain remote until two weeks after their final shot, said Philippe Weiss, president of Seyfarth at Work in Chicago.

HR professionals should guard against bullying employees based on medical status, religion or politics if these factors relate to why someone is unvaccinated, cautioned Adam Pankratz, an attorney with Ogletree Deakins in Seattle.

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Other Tensions

"We are also hearing about what one might call proximity problems—when employees stray or stand too close to one another and are unsure of each other's vaccination status," Weiss said.

In one recent instance, employees at a design firm complained to HR that others had begun disregarding blue demarcation lines taped to the floor to ensure social distancing. "The complainants wanted a new firm rule that only those who were fully vaccinated should be allowed to work onsite," he said. "The company opted instead to more strictly enforce its existing masking and distancing rules for all."

Some companies are supplementing internal COVID-19-related communications with reminders to respect one another's privacy related to medical and vaccine-related history and decisions, Weiss added.

"We are seeing more arguments arise between colleagues as to the necessity of masking," he said. In some cases, employees on videoconference calls have engaged in back-and-forth "mask shaming" of those wearing masks. "HR needs to be vigilant whenever communications cross lines of disrespect," he said.

Employees also are likely to report co-workers who fail or refuse to wear their masks at work and say they have not been vaccinated, Pankratz noted.

In addition, businesses may confront the challenge of customers who refuse to wear masks. "These individuals may feel emboldened that they need not wear masks or comply with the company's safety policies in light of the CDC's new guidance, even though the guidance still requires fully vaccinated individuals to comply with the safety protocols implemented by private businesses," said Alana Ackels, an attorney with Bell Nunnally in Dallas.

Avoiding and Responding to Conflicts

Businesses that want customers to continue to wear masks should update signage to note their companies expect customers to wear masks and socially distance, Weiss said.

"When both practical and safe, consider positioning a greeter at the door to help direct visitors and pleasantly remind them of and thank them for following any rules," he added. Some businesses make masks available for customers who didn't bring one. Clearly note who staff or visitors can speak with about mask-wearing issues, Weiss recommended.

Employers have to balance enforcing their requirements with listening to and potentially accommodating employees, said Michael Elkins, an attorney with MLE Law in Fort Lauderdale, Fla. "If an employer is too rigid, it runs the risk of alienating employees. If an employer is too flexible, it runs the risk of having a policy that is not followed," he said.

As vaccinations become more prevalent and employees who are vaccinated get used to working without masks, conflicts will subside, Pankratz said. 

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