Massachusetts: How Will the Changes to CDC and OSHA Guidelines and Restrictions Impact Your Workplace? (Part Two)

By Marylou Fabbo - Skoler, Abbott & Presser, P.C.

June 10, 2021

A couple weeks ago we blogged about the recent changes to the Centers for Disease Control and Prevention’s (“CDC”) guidance on mask wearing for fully vaccinated people as well as the fact that the Massachusetts Department of Public Health (“DPH”) and OSHA were expected to  follow the CDC’s lead.  We also let you know that the Massachusetts face-covering Order would be rescinded on May 29, 2021.  May 29th is behind us now, and since we posted Part 1, there have been many other developments in the COVID-related world.  In this blog, we provide you with current answers to some of the questions employers have asked us about masks, vaccines, and other COVID-related legal developments.

Is Anyone Legally-Required to Wear a Mask in Massachusetts?

If you’ve been out and about since Memorial Day weekend, you may have noticed that some businesses are still requiring that everyone wear masks, and other places are not.  In Massachusetts, people are no longer required to wear masks at all except in certain places, such as on public and private transportation systems, in healthcare facilities, and in other settings hosting vulnerable populations.  To be clear, the mask mandate has been rescinded so Massachusetts law does not require anyone else to wear a mask, whether or not the individual is vaccinated.

Still, on May 29th, the Massachusetts DPH issued a public health advisory that advises all unvaccinated residents to continue to wear masks in indoor settings and when they can’t socially distance.  This advisory is consistent with (and refers to) the CDC’s advisory pertaining to those who are not fully-vaccinated.  OSHA hasn’t issued any new advisories or guidance, and is still advising employers to follow CDC Guidelines for the time being.

Now That the Mask Mandate Is Gone, Can I Still Require All Employees to Wear Masks?

Yes, but employers must make reasonable accommodations to those who cannot wear masks due to a disability unless doing so would pose an undue hardship.  There are several reasons that an organization may want all employees that come into contact with others to continue wearing masks at work.  It is clear that COVID-19 spreads easily even among people who do not know they have it and that masks can prevent the spread of droplets in the air when someone is talking, coughing, or sneezes.  And, even being fully-vaccinated is not a guarantee someone won’t contract the coronavirus.  If an employer decides that it wants to continue with COVID-19 precautions in the workplace, there’s generally nothing stopping it from doing so – at least right now.

Can We Require Employees to be Vaccinated?

Generally, yes, with some exceptions and caution.  On May 28th, the EEOC updated its technical assistance document to note that federal equal employment opportunity laws do not prohibit policies requiring that all employees who physically enter a workplace receive a COVID-19 vaccination.  Employers are, however, required to provide reasonable accommodations to employees who cannot be vaccinated because of a disability or sincerely held religious beliefs unless providing the accommodation would pose an undue hardship on the operation of the employer’s business.  Accommodations that may be available will depend on the nature of the business, but some that we have recommended that employers consider are requiring the unvaccinated employee to wear a mask or permit the employee to work remotely.

Beware.  The EEOC hasn’t said that employers who require vaccinations are free from all potential liability even if they do make reasonable accommodations based on disability and religion.  In fact, employers may need to respond to allegations that the requirement has a disparate impact on employees in protected classifications such as age, religion, race, color, sex, and national origin.  Therefore, employers should give careful consideration to whether or not they want to require employee vaccinations.

Can Employers Require Employees to Show Proof of Vaccination?

Yes.  Even if an employer does not require a vaccine, employers who require employees who are not fully-vaccinated to wear masks may want to make sure employees are complying with the requirement.  If an employer is asking an employee to demonstrate that he or she has been vaccinated, is the employer asking an impermissible disability-related question?  The EEOC’s answer to that question is no. According to the EEOC:

There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires an employee to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

So, from an Americans with Disabilities Act  (“ADA”) standpoint, it’s ok to ask whether someone has been vaccinated, but if the answer is “no,” don’t ask why.  Any information obtained in connection with the vaccines must be kept in a confidential file separate from the employee’s personnel file.

Can We Incentivize Employees to Get Vaccinated?

Yes, but the incentive cannot be “substantial.”  Recent EEOC guidance makes clear that offering an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a third party, including a pharmacy, public health department, or other health care provider in the community does not violate the ADA.  If an employer is sponsoring the vaccination program, an employer may offer an incentive to employees who voluntarily get vaccinated by the employer or its agent “if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive.”  The EEOC did not provide any examples of what incentives would be considered “so substantial as to be coercive” where the employer is administering the vaccination program so  employers would be wise to consult with their legal counsel before putting an incentive in place.

Do I Have to Pay Employees to Get Vaccinated?

Under a new state-funded program, Massachusetts employees are eligible for paid sick time for certain reasons related to COVID-19 (“COVID-19 Sick Leave”), and one of those reasons is getting vaccinated.  This new paid sick leave bank is a brand new bucket of paid sick time available for COVID-related reasons.  That means that leave under the new law does not run concurrently with Massachusetts Earned Sick Time or any other job-protected leave, paid or unpaid, that is provided under any employer policy or program, collective bargaining agreement, or federal law.  Except for the federal government, all Massachusetts employers are required to provide all employees up to 40 hours of COVID-19 Massachusetts emergency paid sick leave for the following reasons:

•    To seek or obtain a medical diagnosis, care, or treatment for COVID-19 symptoms;
•    To self-isolate and provide care for themselves due to their own COVID-19 diagnosis;
•    To obtain the COVID-19 vaccine;
•    To recover from any injury, disability, illness, or condition related to the COVID-19 vaccine;
•    To care for a covered family member who needs a medical diagnosis, care, or treatment for COVID-19 symptoms;
•    To care for a covered family member who is self-isolating due to a COVID-19 diagnosis;
•    To quarantine pursuant to an order or other determination by (1) a local, state or federal public official; (2) a health authority with jurisdiction; (3) the employee’s employer; or (4) the employee’s health care provider that the employee’s presence on the job or in the community would jeopardize the health of others because the employee has been exposed to COVID-19 or is exhibiting symptoms of COVID-19, regardless of whether the employee has been diagnosed with the disease; or
•    To care for a family member who is the subject of such a quarantine order or determination, regardless of whether the family member has been diagnosed with COVID-19.

COVID-19 Sick Leave may be used intermittently, in one hour increments, but employees are required to telework if it is feasible for them to do so unless they have been diagnosed with COVID-19 and their symptoms inhibit their ability to telework.  Employees must also continue to receive all employment benefits during any period of COVID-19 Sick Leave.  COVID-19 Sick Leave will be available to employees until September 30, 2021, or 15 days after the state gives notice that the $75 million in funds earmarked for this program will likely be depleted within 15 days, whichever occurs first.  Employers get a tax reimbursement benefit for providing the leave.

By June 4, 2021, employers were required to post a notice in a conspicuous location in each of their establishments and to distribute it directly to employees. Employers who have employees that telework or work through a web-based platform must send the notice via e-mail or post it on the web-based platform.  So, if you haven’t done so already, you should immediately post and distribute information about this new law.
You can find more information on the COVID-19 Sick Leave and a sample employee notice here.

Is That All?

This blog sets forth the state of the law at this time, and it’s not out of the question that things will change down the road.  Massachusetts has not weighed in on many of the above topics yet and may or may not do so.  Employers should keep their eyes open for new information on the state, local, and federal level.  We know that this this blog isn’t likely to answer every question that employers have.  Our attorneys are available to answer other questions your organization may have.