COVID Vaccine Mandates: Do Unvaccinated Employees Need to Wear Masks?

Please note: On Saturday, November 6, the Fifth Circuit Court of Appeals placed a temporary hold on the OSHA Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100 or more employees. The current ruling is temporary, but there are likely to be updates soon. MP will update our materials accordingly. In the interim, our HR services experts recommend employers continue to prepare in case these deadlines are upheld.

---

Many organizations impacted by OSHA’s COVID safety Emergency Temporary Standard (ETS) for employers with over 100 employees are focused on its testing and vaccination requirements. These requirements will be labor-intensive for HR compliance employees. They will include tasks such as: creating new employee policies (and ensuring they’re ADA compliant), developing systems for tracking vaccination status and testing results, and communicating with staff about new policies and procedures.

Besides these tasks, employers will also need to meet another critical requirement for HR and compliance: masking for unvaccinated employees. MP’s HR services experts share three considerations employers need to know about masking and OSHA’s recent ETS.

1. Employees who are not fully vaccinated must wear a mask.

If employers choose to comply with OSHA’s ETS by allowing unvaccinated employees to test weekly for COVID, they must also require those unvaccinated employees to wear a mask in the workplace. This requirement applies to employees who come to the workplace at least once every seven days. Employees must wear a clean face covering that fully covers their nose and mouth. They must wear this face covering when indoors and inside a vehicle (for work purposes) with others. Employees may choose not to wear a mask when:

• Alone in any room with a closed door and walls that run from floor to ceiling
• Eating or drinking in the workplace (for a limited period of time)
• Conducting identification checks for security purposes (for a period of limited time)
• The employer demonstrates a face covering will create a more significant hazard to the employee
• Working remotely

2. Employers must begin requiring masking in January and continue until the ETS sunsets.

• All unvaccinated employees should begin wearing a mask as of January 4^th, 2022. If employees have only received one shot of the Pfizer or Moderna vaccine, they must continue to test weekly for COVID and wear a mask until they’ve received both shots (and are fully vaccinated).

• Employers must enforce masking requirements for unvaccinated employees for the duration of the ETS. Note OSHA’s ETS may either be extended or become permanent.

3. Masking doesn’t reveal confidential health information.

Some employees and employers are concerned that because unvaccinated employees must wear a face mask, this action will disclose confidential health information or pose a HIPAA violation. Masking will not convey health information because both vaccinated and unvaccinated employees may choose to wear a mask. Employers who require unvaccinated employees to mask will not violate HIPAA because they’re not healthcare providers releasing their patients’ information without permission.