On Monday, May 17, Governor Baker announced that Massachusetts is lifting most COVID restrictions, including capacity restrictions and the mask mandate in most indoor settings, on May 29.  This includes the sector-specific protocols under which Massachusetts businesses have been operating since the reopening began last May.

Governor Baker made it clear that private businesses are free to adopt their own COVID safety protocols if they choose, but they will not be required to do so.

Other states, including California, Connecticut, Illinois, and New York, are lifting indoor mask mandates for vaccinated individuals but continuing to require masks indoors for unvaccinated individuals.  However, these rules are changing rapidly as states are reopening.

Naturally, these changes are generating a number of questions from our clients.  In this newsletter, we aim to provide some guidance in response to the most frequent questions that we have been fielding since the announcement.

Can We Bring Everyone Back to the Office?

As of May 29, businesses in Massachusetts can reopen to 100% capacity.  This means that businesses can bring all employees back to work if they choose to do so.  However, you should also consider your company culture and employees.  If your business does not need full in-person work, continuing remote work or creating hybrid models may be better for employee retention and satisfaction.  A slower return to the office may also help with some of the following issues around masks and vaccinations.

Can We Keep Requiring Masks for Now?

Yes, private businesses are free to adopt or maintain their own COVID safety protocols.  This can include continuing any protocols that you currently have in place, including mask mandates.  You can also consider a slower phase out of restrictions than the state’s May 29 date.  May 29 is the date when businesses will no longer be required to follow the sector-specific protocols, but businesses are not required to make any changes by that date if they choose not to do so.

Can We Drop Masks Entirely?

Under the revised Massachusetts rule, as long as you are not in one of the specific sectors that will still require masks (including health care, transportation, and schools/early childhood education), you can allow all of your employees to stop wearing masks, including unvaccinated employees, even indoors.  Governor Baker will be issuing an advisory recommending that unvaccinated individuals continue to wear masks indoors but they will not be required.

However, for now, OSHA is recommending that employers follow the CDC’s stricter guidance for unvaccinated employees.  According to the CDC, vaccinated individuals are free to stop wearing masks entirely, including indoors.  But the CDC still recommends that unvaccinated individuals continue to wear masks indoors.  OSHA is currently reviewing the situation and may issue their own opinion soon, but for now, according to OSHA, unvaccinated workers must wear masks indoors to have a safe workplace.

This creates a dilemma for workplaces – how can you distinguish between vaccinated and unvaccinated workers?  And even if you can, should you?

The EEOC has taken the position that employers can ask employees for their vaccination status without violating the Americans with Disabilities Act (“ADA”).  According to the EEOC, employers can ask their employees if they have been vaccinated, but they should not ask follow-up questions about why an employee has not been vaccinated, which might be considered a disability-related inquiry in violation of the ADA.

Within this framework, employers have a few options:

  1. Ask employees to truthfully report their vaccine status if they wish to stop wearing masks. The downside of this approach is that some employees might lie about their vaccine status.  If you chose to allow employees to self-report, you should inform them that lying about their vaccine status will result in discipline, including potential termination.
  1. Ask employees to show Human Resources their vaccine cards if they wish to stop wearing masks. This approach solves the problem of employees lying about their vaccine status (although there’s always the risk that an employee will forge a vaccine card, which should result in discipline/termination).  If you choose this approach, keep in mind that vaccine cards are considered a medical record, so it must be stored separately from an employee’s personnel record and privacy protected.

Another complication of dropping your mask mandate is how to address people who cannot be vaccinated for bona fide religious or medical reasons.  If their coworkers are unvaccinated and not wearing masks indoors, this could pose a risk to these individuals who cannot be vaccinated.  For these individuals, you have a few options:

  • Allow these employees to continue wearing masks.
  • Survey your workforce to see what percentage have been vaccinated. If nearly everyone has been vaccinated, the risk to an unvaccinated individual should be low.
  • Offer reasonable accommodations to individuals with bona fide medical or religious reasons why they cannot be vaccinated. This could entail continued remote work, rearranging the workplace, or keeping safety measures such as Plexiglas dividers in place.

Can We Require Vaccines Before We Drop Masks?

Finally, some employers may want to drop masks in conjunction with requiring vaccines.  As we discussed in our previous newsletter, employers can require vaccines as long as they carve out reasonable accommodations for individuals with bona fide religious objections or medical issues.  You could set a date in the near future, such as June 15, by which time all mask requirements will be dropped and employees will be required to be vaccinated.

Final Note – Keep an Eye Out for Local Restrictions

Governor Baker also emphasized that local communities are free to adopt stricter rules, even as the Commonwealth drops its restrictions.  Businesses should keep an eye on any additional restrictions adopted by their local towns or cities as Massachusetts reopens.

As always, please feel free to contact us with any questions as you are navigating these changes.