The Eau Claire City Council and Eau Claire County Board on Tuesday repealed the local ordinance that required the wearing of masks in indoor public spaces. This was effective immediately upon passage. The action came in light of new guidance from the Centers for Disease Control saying that fully vaccinated people can “resume activities that you did prior to the pandemic … without wearing a mask or staying 6 feet apart” in most indoor and outdoor settings.
Although the local mandate is no longer in effect, the CDC still recommends masking for non-vaccinated individuals, as well as for everyone in healthcare settings, correctional facilities, jails, and schools. Masks also continue to be required, for now, on planes, buses, and trains. OSHA has indicated it will release updated guidance on workforce safety, but has not yet done so.
These changes have led to many questions from organizations about their options with employees and customers. We have reached out to HR and legal sources and have gotten the following answers to common questions:
* An employer can still require mask wearing by all employees and customers based upon their best judgment, or it can lift requirements.
* If they choose to, an employer can implement a policy allowing vaccinated employees to refrain from wearing masks, but requiring non-vaccinated individuals to wear masks, per new CDC guidelines.
* Employers may ask employees if they are vaccinated, and even require proof, but must also take care not to respond to the information in a way that could conflict with ADA requirements. In a set of Q&As for its members, HR consulting organization MRA says "employers should be careful to avoid an ADA violation by ensuring the request is: (1) not likely to elicit information about a disability, (2) does not ask employees to provide a reason for why they didn’t get vaccinated, and (3) informs employees not to provide any medical information as part of the requested proof of a COVID-19 vaccination."
* Employers do not have to require proof and can implement a policy based upon the honor system. Law firm Ruder Ware notes "without more guidance from OSHA, or other government agencies, there is no requirement that you seek proof of vaccination. If you issue a 'no mask for vaccinated' policy, on the honor system, the worst-case scenario is that unvaccinated employees show up without masks which results in an outbreak of COVID-19." Ruder Ware says that could affect Workers Comp claims, but " if the person who gets COVID was unvaccinated and not wearing a mask then it’s uncertain how far they will get" with a claim.
* Employers may provide incentives to employees to be vaccinated, but MRA cautions that "monetary incentives are not recommended to avoid potential risks of discrimination (e.g., some employees may not be eligible to receive the vaccine, such as pregnant workers or workers with certain health conditions or allergies) as well as avoiding risks of violating the EEOC’s position against providing significant wellness rewards. Some incentives employers are considering include time off (paid or unpaid) to get vaccinated, paid time off for those experiencing adverse reactions, reimbursement for any vaccination-associated costs, wellness points, or employer swag."
As always, it's a good idea to work with employment attorneys and HR professionals to ensure regulatory and legal compliance of any policy you adopt, and if you have further questions.
Guidance for fully-vaccinated individuals (Center for Disease Control)
Guidance for businesses and employers (EC City-County Health Dept.)
OSHA Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (OSHA)
Eau Claire County COVID-19 Information Hub
Eau Claire County COVID-19 Vaccination Page
COVID-19 Updates (MRA)
To Mask or Not to Mask? For Employers That is the Question (Ruder Ware)
Have You Been Vaccinated? Your Employer (and Everyone Else) Wants to Know (National Law Review)
Eau Claire Chamber
The Eau Claire Chamber of Commerce has more than 1,200 members.