Mask Mandates Return, Along With Vaccination Requirements

Employment Law


It’s déjà vu all over again, as mask mandates return and a growing number of employers—both public and private—require vaccinations for their workers.

In California, vaccinated workers were allowed to go mask-free as of June 17, when the state’s Occupational Safety and Health Standards Board officially approved revised Emergency Temporary Standards.

But the spike in COVID-19 cases and the continuing spread of the Delta variant, coupled with new Centers for Disease Control and Prevention (CDC) guidance recommending masking even for the vaccinated, reversed that a little more than a month later.

On July 28, the Department of Public Health (DPH) recommended universal masking indoors, even for vaccinated employees. And the DPH ordered all covered health care facilities to verify the vaccination status of their workers and put mandatory testing requirements in place.

Several counties—including Alameda, Contra Costa, Los Angeles, Marin, Sacramento, San Francisco, San Mateo, Santa Clara, Sonoma and Yolo—as well as cities such as Berkeley followed suit, issuing separate orders to mandate masks indoors in public spaces, regardless of vaccination status.

The various orders contain some exceptions. A person working alone in a closed office or room is exempt from wearing a mask, for example, while San Francisco allows masks to come off for religious gatherings and indoor recreational sports where people can be physically distant.

With regard to vaccination requirements, employers are increasingly mandating that their workers get vaccinated. Federal workers are required to attest that they have been vaccinated (or else comply with rules on mandatory masking, weekly testing, distancing and more), including employees at the Department of Health and Human Services, Pentagon service members, and health workers at the Department of Veterans Affairs.

Several states have required that certain categories of state employees be vaccinated—typically health care workers, as in Connecticut and New York—while California has gone further and ordered state employees, health care workers and teachers to be vaccinated or undergo weekly testing.

Private employers, including such major national companies as Google, Lyft, Microsoft, The Walt Disney Company, Tyson Foods, Uber and United Airlines, are also increasingly requiring that workers obtain the vaccine.

In addition to legal support from the Equal Employment Opportunity Commission and a decision from a Texas federal court tossing a challenge brought by employees against an employer’s vaccination requirement, the Department of Justice (DOJ) recently released a memo echoing support for vaccine directives.

The DOJ stated that the “emergency use” approval for the COVID-19 vaccines does not prohibit employers, universities or other entities from requiring the shot.

Why it matters: Employers across the country need to keep a close eye on local, state and national orders as the number of COVID-19 cases continues to rise, and may want to consider joining the increasing number of companies that mandate vaccines for all employees (with exceptions for sincerely held religious belief and medical reasons).

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