CDC’s (Un)Masking Policy Creates Consternation for Employers

Nancy Grover

Sarasota, FL ( – New guidelines that eliminated many mask restrictions for people who have been vaccinated against the coronavirus have generated criticism and confusion for many. While seemingly welcome news, the recommendations have generated a variety of concerns from employers.

The nation’s largest nurses’ union slammed the Centers for Disease Control and Prevention’s (CDC) latest announcement, saying it threatens the lives of frontline workers and flies in the face of OSHA guidelines. For many employers it raises of questions of what to do next.

“It’s going to be challenging,” said Mark Pew, SVP Produce Development and Marketing for Preferred Medical. “Now that the CDC finally agrees that masks are not necessary for people who are vaccinated, the goal now is what happens with all the people who were following those guidelines? Some on a corporate level have decided masks are not required, but individual state and county and even city-level ordinances may overrule that.” Pew said his comments about the CDC guidance were strictly his own thoughts and not necessarily reflective of his company.

The conflicts of the CDC recommendations with various laws was highlighted over the weekend in an incident with actor Rick Schroder at a California Costco. In a video that has gone viral, Schroder can be seen arguing with a Costco employee who refuses him entry for not wearing a mask. The actor points out that Costco’s corporate leaders had announced that fully vaccinated customers do not need to wear masks — in areas where that policy doesn’t conflict with local laws. When the employee explains that local laws at that particular store outrank the CDC’s guidelines, Schroder demands his money back and encourages other customers to do the same. Schroder later apologized to the employee saying it was “nothing personal.”

The incident point to the challenge of the new guidance for employers. Experts point out that the CDC guidelines do not have the power of law, and that the final decision on mask wearing and other policies are up to employers, based on a variety of factors.

“During this entire pandemic we generally defer to the CDC as being the law of the land. We have to be careful in terms of how we analyze their guidances. Ultimately at the end of day, we need to defer to the mandated law,” said Albert B Randall, Jr., President of Franklin & Prokopik. “While the CDC has stated their guidance on unmasking, we have to look to see what the jurisdictions are doing as well because different states, and counties are reacting, as they are wont to do on their own, and looking at their own constituents.”

Employers, especially retailers, who want to relax mask-wearing rules for employees and/or customers who have been vaccinated aren’t sure how to determine who fits that category.

“Vaccine passports have tremendous issues from a personal liberty standpoint,” Pew said. “I have my card, I carry it in my wallet because I’m not quite sure who might require it. It’s not the same as a vaccine passport, where you’ve given information to a third party. Absent that, and an official green checkmark, you’re really going to be reliant on the customer being honest.”

That raises the question of how to determine whom to allow in a store. It further confounds the situation that has been seen in the last year, of employees being attacked for trying to enforce their employers’ mask wearing policies.

“At what point do you ask your employees to push back,” Pew said. “Employers really have to make a pragmatic decision as to whether it’s worth the fight to put their employees on the front lines of potentially being in an explosive environment.”

From a legal standpoint, employers need to understand the laws of each area in which they have operations and “be careful of how they are implementing policies so they don’t risk noncompliance,” Randall said. “There’s nothing wrong with following the CDC guidance as long as they are not running in conflict with other federal, state or local laws. That doesn’t necessarily mean that their exposure isn’t impacted.”

As Randall pointed out, removing a mask mandate “provides one less potential avenue of mitigating transmission of the disease … since [workers’ compensation] is a no fault system, that could result in slightly enhanced workers’ compensation exposure. Given that many people have been vaccinated at this point, that’s a counter balance. While it may be a little less protection for certain workers, to the extent the vaccinations are reducing the transmission, that exposure may not be all that significant.”

Employers would be wise to “be very cognizant of the politics in their area,” Pew said, along with the local ordinances. “Whether you believe in masks or no masks, extremists on either side absolutely look at [those on the other side] in a negative light … you don’t necessarily want to put your employee in the middle of that. It’s probably going to end poorly … I don’t think we want to get to the point where we have bouncers in front of stores.”

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