Is Guidance the Operative Word?
On Thursday, May 13, 2021, exactly 14 months to the day that our world changed, the U.S. Centers for Disease Control (CDC) provided us with a glimpse at a “return to normal” and updated their face mask guidelines. The CDC stated that fully vaccinated individuals no longer need to wear masks in most outdoor and indoor settings (public transportation, healthcare facilities and other highly populated indoor facilities such as prisons or homeless shelters are among a few of the examples provided where masks will still be required).
So, does this mean we can strip the masks off and throw out the workplace policies we have labored over, enforced, updated, implemented, revised, and refreshed for more than a year? The short answer, no. Even the CDC provided a caveat to their guidance, “You can resume activities without wearing a mask or staying six (6) feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”
Remember that state supersedes federal ruling and here, in the great state of California, our mask mandate is still in play. Let’s be honest; there is still so much to unpack with this guidance, that it has many of us reeling and wondering if guidance is the operative word. While this guidance may at the surface seem great, what does it mean for employers? How do we manage this? Why don’t we jump into some of the questions that you are undoubtedly having, shall we?
Q. Is this the honor system?
A. We aren’t exactly sure. Maybe…?
Q. Are employees now expected to be mask and vaccine police?
A. Maybe…? Although this doesn’t seem like an ideal situation.
Q. If we allow fully vaccinated employees to remove masks, are we making employees with underlying medical conditions or religious beliefs feel ‘outed’?
A. Maybe…? Are you prepared for the dialog that will come from this? That is, you may be gaining information you may have otherwise not needed or wanted about medical conditions and religious beliefs.
Q. Can I request vaccine cards as proof?
A. Yes. But does this mean you should? For FFCRA reimbursements you do need proof in case of an audit, but is it advisable to require proof while policing masks…
Q. Is that a HIPAA violation?
A. Not necessarily. HIPAA protects a patient’s personal health information and applies to how healthcare providers and insurers share a patient’s information with third-party entities. A vaccine card would qualify as protected health information, but a retailer or airline is not a healthcare provider. Additionally, HIPAA does not protect medical information that a patient may volunteer. Once someone has this protected information, they have to protect it and would be required to notify individuals of a breach to the information. So, can we ask for that vaccine card? Yes. Should we? That remains to be seen. We also need to consider privacy laws at a state level. The fun just keeps on coming.
Q. How do we manage this?
A. That depends. There are no one-size fits all solutions and this determination isn’t something to be done in haste. We need to consider our employee population, how this will impact our business, and review local and state guidelines prior to making any changes to policy.
If you think that the answers above are vague and ambiguous, I whole-heartedly agree. The fact is the guidance is ambiguous and there is a lot at play. We are kind of building the plane mid-flight and each day are facing different climates, but we will get through it. What works for your group may not work for another employer and that is okay. Good news, TPPS is here to assist and have these conversations with you.
Looking for quick updates, reminders, and employment information? Follow us on LinkedIn
