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CDC guidance could spur 'head-butting' in the workplace over masks

·5 min read

The federal government made an about-face to its mask guidance on Tuesday, advising even some vaccinated people to wear masks indoors — making a decision that could push employers to rethink how they go about reopening their doors. 

The updated guidance from Centers for Disease Control and Prevention (CDC) says due to the spread of COVID-19's Delta variant, fully vaccinated people should wear a mask indoors in public in areas with ”substantial or high transmission.” The guidance also extends to all children and adults in K-12 schools, regardless of vaccination status.

Legal experts say the change, which comes as more workers head back into the office, is likely to prompt state and local governments — and in turn businesses — to set mandatory mask policies for workers and customers. And that could create new tensions in workplaces, especially those that have already issued guidelines on mask-wearing.

"You're going to see real head-butting because there's a group of folks who are really not interested in any kind of a mandate and it's become a political hot button issue," Aaron Goldstein, a labor and employment partner at Dorsey & Whitney, told Yahoo Finance. 

Goldstein predicts rising tension between workers and employers as states and localities pressure businesses to follow new rules. Still, he said mandates limited to mask requirements are likely to cause less friction than vaccine mandates, given that masks have so far been a more widely accepted measure to combat viral spread.

Face mask requirements following CDC guidance are posted at the various entrances at the Rose E. McCoy Auditorium where COVID-19 vaccinations are being offered in Jackson, Miss., on July 27, 2021. (Photo by Rogelio V. Solis, AP)
Face mask requirements following CDC guidance are posted at the various entrances at the Rose E. McCoy Auditorium where COVID-19 vaccinations are being offered. (Photo by Rogelio V. Solis, AP)

Why did CDC reverse course? CDC director Dr. Rochelle Walensky told reporters during a press briefing Tuesday that new scientific data on the Delta variant was "worrisome," showing the strain to cause rare instances of infection and transmission in fully vaccinated individuals.

In addition to the new mask guidance, the CDC suggested that fully vaccinated people who come into close proximity with someone with COVID-19 be tested three to five days after exposure and wear a mask indoors in public for at least 14 days.

State and local rules prevail over CDC guidance

Although the CDC’s guidelines are not legally enforceable, Goldstein said they have so far proven to be a touchstone that prompts state and local governments to pass their own enforceable measures.

“I do think as the CDC comes out with this guidance, it's going to empower a lot of state and local governments to require people to re-mask,” Goldstein said. 

Under a state or local mandate, Goldstein said, even private employers and businesses are required to follow suit.

Dr. Rochelle Walensky, director of the CDC speaks on the coronavirus crisis in Washington, Thursday, April 15, 2021. (Amr Alfiky/The New York Times via AP, Pool)
Dr. Rochelle Walensky, director of the CDC speaks on the coronavirus crisis in Washington, Thursday, April 15, 2021. (Photo by Amr Alfiky/The New York Times via AP, Pool)

“If an employer says we don't want masks, but the state local government says you have to have masks, state and local rules are going to prevail over what employers want to do,” Goldstein said.

Jackson Lewis labor and employment lawyer, Katharine Weber, said at a minimum, she too expects state, local and business leaders to react to the CDC’s change with new rules.

“I would expect that many of those governors will issue new executive orders that basically say, you should follow CDC guidance,” Weber said.

Even absent new state and local rules, mask mandates could become more widely adopted by businesses, solely based on their interest in decreasing liability. Because OSHA requires employers to provide workers with a workplace free from unreasonable risk of injury, Goldstein and Weber said, an outbreak in the workplace could foreseeably give rise to an OSHA violation. 

“Those employers may step back and ask themselves, given the updated CDC guidance: Do I want to make a change to my practices?” Weber said.

For COVID rules, location matters

Seyfarth Shaw labor and employment partner Elizabeth Levy described COVID laws and guidance as a patchwork of varying and overlapping rules. From jurisdiction to jurisdiction, she said, the complexity not only requires employers to adopt distinct policies, but can also fuel their implementation of over-inclusive, streamlined measures. The decision is especially challenging for larger employers that operate across multiple jurisdictions, making the patchwork difficult to manage.

“COVID, it's like real estate, location matters,” Levy said. “Whatever your processes are in rural Texas are not necessarily going to be the same as San Francisco. There's going to be a huge divide.”

Levy said employers should try to remain flexible to adapt to changing conditions. As examples of how quickly policy can swing 180 degrees, she pointed to California’s revised local mask mandates and another revised mandate implemented by the city of St. Louis on Monday. 

“I think it just does underscore how much the Delta variant is a game changer,” she said.

As concerns heighten over the spread of the Delta variant, Weber said it becomes more likely that employers will reevaluate whether they'll make additional changes such as mandating the vaccine, or considering more flexible options for their workers.

“They then might step back and say, you know...maybe I need to consider options of allowing employees to choose to work remotely," Weber said, "or to choose to have more time to get fully vaccinated, or to get tests.”

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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