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How to handle masking under evolving CDC guidance

September 2021 employment law letter
Authors: 
Robert L. Duston, Saul Ewing Arnstein & Lehr LLP

Frontline workers have been back on the job since Spring 2020, providing essential and critical services. But many of their white-collar coworkers and managers have been toiling from home for almost 18 months, along with millions of other employees and professionals in numerous industries. Until recently, there was a general consensus around soft openings during the summer and the reopening of offices after Labor Day. Then the new delta variant got worse, and the U.S. Centers for Disease Control and Prevention (CDC) changed its advice.

Masks off, masks on

Because of the delta variant, a large portion of the United States is in a “substantial or high transmission area” for COVID-19. So, in late July 2021, the CDC changed its guidance, now recommending fully vaccinated individuals in those geographic areas should wear masks in public indoor settings.

Most vaccinated employees expected going without masks would be one of the perks when offices reopen. After the new CDC guidance, however, employers need to reconsider their masking policies. Many are choosing to follow the agency’s guidance or are being required to do so by state or local governments.

On August 13, the Occupational Safety and Health Administration (OSHA) updated its guidelines for employers to incorporate the CDC’s new stance. While the guidance isn’t a mandatory rule (like OSHA’s rule for healthcare entities), failure to follow it could be cited in other types of complaints.

Reasons for masking up again

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