UPDATE: On May 26, 2021, Governor Murphy issued a new Executive Order to clarify Executive Order 242 which lifted the mask and social distancing mandates. Executive Order 243 provides additional clarity but also additional requirements for employers. First, Order 243 makes clear that safety measures unrelated to masks and social distancing such as daily health screenings remain in force and are still required. Regarding mask and social distancing, the Order distinguishes between worksites whose indoor spaces are open to the public for purposes of sale of goods, attendance at an event or activity, or provision of services and worksites whose public spaces are not open to the public for those purposes.
Fully vaccinated workers at worksites open to the public are no longer required to wear masks and socially distance and employers are free to determine whether fully vaccinated employees can remove their masks at the workplace. Executive Order 243 encourages workers who are not fully vaccinated and work in a worksite that it is open to the public to continue wearing their masks and encouraged to maintain social distancing.
For worksites that are not open to the public, workers who can provide proof that they are fully vaccinated are no longer required to wear masks. However, employees who are not fully vaccinated or whose vaccination status is unknown to their employer must continue to wear their mask and maintain social distancing. Employers at those worksites are mandated to enforce these masking and distancing requirements for employees who are not fully vaccinated or whose vaccination status is unknown. This clarification presents new challenges and issues for employers to deal with and likely increases the risk of workplace disruptions and the threat of litigation. Businesses should work with employment counsel to think through these issues and form a plan before taking action.
Governor Murphy announced on May 24 that the State of New Jersey will be lifting major Covid-19 restrictions, including ending the indoor mask mandate, effective Friday, May 28. Governor Murphy’s announcement also indicates that New Jersey will be relying on and following CDC guidance on mask and distancing mandates. At the same time, the Occupational Safety and Health Administration (“OSHA”) directed businesses to the CDC’s new guidance which advises that fully vaccinated individuals no longer need to wear a mask or maintain social distancing in non-healthcare settings. While OSHA’s announcement does indicate its support for the CDC’s recommendation, OSHA did not amend its January 29, 2021, guidance directing employers not to distinguish between workers who are vaccinated and those who are not. OSHA guidance on this issue is of great importance as OSHA is the agency charged with enacting, and more importantly, enforcing workplace safety requirements.
Why you need to know about this?
In response to these latest developments, employers are left to decide for themselves how to proceed regarding masks and other Covid-cautious procedures such as distancing. The option with perhaps the lowest risk of an OSHA violation or employee lawsuit is for employers to continue with full masking and distance requirements. However, as more individuals become fully vaccinated and restrictions are lessened elsewhere, employees faced with stringent masks and distancing requirements may be more likely to complain, seek accommodation or find new employment. Moreover, the continued politicization of masks and vaccinations may also contribute to employee unrest and employer liability.
Employers looking to lessen restrictions for their fully vaccinated workers will need to determine whether they will demand actual proof of fully vaccinated status or be willing to accept the word of their workers for who is and is not vaccinated. Requiring any form of affirmation as to vaccination status carries some level of risk, and employers who are looking to relax certain restrictions are required to safeguard those workers who are not vaccinated, meaning employers must track the vaccination status of their workers. Anytime an employer delves into disability-related information the chance for an ADA claim increases dramatically as do employee requests for accommodations which carry their own legal minefields for employers to navigate. Even after employers decide how to determine vaccination status, employers must then enact differing treatment for their employees which carry significant risks for claims of discrimination and/or harassment and present practical problems such as reconfiguring the workplace or distinguishing between employees who are and are not vaccinated.
What should you do now?
The announcements from Governor Murphy and OSHA are welcomed news for employers, but do present a new set of challenges at least until more formal and required procedures are provided by OSHA, the CDC or New Jersey agency. For now, employers should work with experienced employment counsel to think through these issues and be prepared for additional changes in guidance.