Last week, the CDC announced that people who have been fully vaccinated no longer need to wear masks or socially distance themselves. Although these guidelines are welcome news, they are nonetheless still only guidelines. They do not have the effect of law, and they do not have the power to override any existing state or local mask mandates. Luckily, Maryland ended its statewide mask mandate in response to the CDC’s announcement, and Montgomery County also plans to lift its mask restrictions on May 28th. Baltimore City, on the other hand, has opted to keep its mask mandate in effect for the time being. Employers should make sure to educate themselves on the mask mandates in their area to ensure that they are in compliance with local laws.
Employers who are no longer subject to mask mandates may choose to allow their vaccinated employees to work unmasked. Employer may choose to institute an honor system, or they can require employees to provide proof of vaccination. Because vaccination cards only contain information about the date of an employee’s vaccination, and no other private medical information, the EEOC has stated that employers can require employees to provide proof of their vaccination without running afoul of the ADA. However, employers who choose to do this should be careful to describe their policy as one of “voluntary disclosure of vaccination status,” i.e., employees are not required to submit their vaccine cards, but they can choose to do so if they want to mask-free in the workplace.
In response to the CDC’s guidelines, some employers have considered offering cash incentives to employees who get vaccinated. Although it is understandable why employers would want as many employees to be vaccinated as possible, vaccine incentives are something of a legal gray area at the moment. If an employee is unable to get a vaccine due to their disability or religion, they would effectively be ineligible for the incentive. Additionally, some religious or disabled employees might feel coerced into getting a vaccine they don’t actually want. In order to avoid these potential ADA and Title VII issues, employers would be wise to avoid vaccine incentive policies. However, employers can still encourage vaccinations by offering paid leave for anyone who needs time off to get a vaccine, or if they experience symptoms and need to take off work.