Friday, May 14, 2021

Masks Off? Not So Fast….

By: Jessica Summers, Principal

On Thursday, May 13, 2021, the Centers for Disease Control and Prevention (CDC) made big news by announcing that, subject to certain exceptions, “fully vaccinated people can resume activities without wearing a mask or physically distancing.”

However, as businesses scramble to answer questions for themselves and their employees about what this will mean, it is critically important to recognize that there is a huge caveat to the CDC’s guidance. Per the CDC, this new lifting of restrictions applies “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”  In other words, as has been the case throughout the pandemic, the CDC guidance simply sets the floor. States, localities, and private businesses continue to be free to impose requirements above and beyond what is recommended by the CDC, which many have elected to do. 

The bottom line is that before lifting any COVID-19 safety precautions, including mask requirements, employers should first confirm that their actions will comply with all state and local laws.  

So where do things stand around our region?

Maryland – The day before the release of the CDC’s new guidance, Maryland Governor Larry Hogan announced that the state will be lifting all capacity limits effective May 15 but that its indoor mask mandate will remain in effect until “70% of Maryland adults receive at least one dose of a COVID-19 vaccine.”  According to the Governor’s accompanying press release, 65% of adults in the state had received at least one dose of the vaccine as of the date of the announcement.  Governor Hogan has not made any indication that the state will be planning to change its approach based on the latest CDC guidance. 

Virginia – Virginia Governor Ralph Northam announced that the Commonwealth will be reviewing and considering the CDC’s new guidance.  At the end of April, Governor Northam issued a new Executive Order, set to go into effect on May 15 which, among other things, will allow fully vaccinated Virginians to participate in outdoor activities and recreation without a mask (consistent with prior CDC guidance).  But, for now, Virginia’s general indoor mask mandate remains in effect.  Additionally, as everything unfolds, employers in Virginia should take care to ensure that they are still complying with the Commonwealth’s Final Permanent Standard.  The Final Permanent Standard requires Virginia employers to take a wide range of actions depending on the nature of their workforce to prevent the spread of COVID 19 in the workplace including imposing mask and other PPE requirements.  The Final Permanent Standard is set to remain in effect indefinitely.  However, once the Governor lifts Virginia’s COVID-19 state of emergency (currently set to expire on June 30, 2021), the Virginia Safety and Health Codes Board will have 14 days to start the process of reviewing whether there is a continued need for the Final Permanent Standard if it has not taken such action already. 

District of Columbia – Like Governor Northam, D.C. Mayor Muriel Bowser reacted to the news from the CDC by announcing that the District will be reviewing the latest guidance and considering appropriate actions going forward.  The Mayor just recently issued an updated mask Order on May 1 which, unless replaced by a future order, will extend through May 20 or the last day of DC’s COVID-19 state of emergency, whichever is later.  The latest Order eases restrictions on masks for fully vaccinated people participating in outdoor activities and private gatherings.  However, the Order provides that everyone must still follow DC Health Guidance on indoor mask wearing which currently provides that everyone must wear masks inside any place of business (unless exceptions apply).  

The big takeaway for employers in the DMV is that none of the three jurisdictions will currently allow employers to lift their indoor mask requirements and employers will need to stay tuned for future developments.  Given the lack of public clarity following the release of the CDC guidance, employers are well advised to communicate with their employees to help them understand the situation and the rules that will continue to apply to them going forward.