With COVID-19 cases on the rise due to the highly transmissible Delta variant, federal and local government views on masks are once again evolving. Employers may need to revise existing policies to reflect these developments.
On July 7, 2021, the Centers for Disease Control and Prevention (CDC) rescinded its previous guidance, which said that fully vaccinated people could safely forego wearing masks indoors. The federal agency now recommends that both vaccinated and unvaccinated people wear masks in public indoor spaces if located in an area of substantial or high transmission. At this time, most Kansas counties are designated “high” transmission areas, including Sedgwick County, Butler County, Shawnee County, Johnson County, and Wyandotte County.
Though the CDC’s guidance is not binding on employers, some state and local governments are reviving mask mandates applicable to both vaccinated and unvaccinated individuals. Kansas City, Missouri, for example, announced reinstatement of an indoor mask mandate, effective Aug. 2, 2021, in places of public accommodation. Missouri Attorney General Eric Schmitt sued Kansas City over the mandate, but it will remain in effect unless and until the court says otherwise.
At this time, Kansas Gov. Laura Kelly has not issued a state-wide mask mandate – she announced on July 28, 2021 that the issue of reinstituting mask mandates will be left up to Kansas counties. She has, however, announced that state employees, and anyone entering a state building, will be required to wear a mask beginning Aug. 2, 2021.
Employers should also consider their general duty under OSHA to provide workers with a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Originally, as part of this obligation, OSHA advised employers to require masks for all employees when social distancing was not possible. Then, in accordance with CDC guidance at the time, OSHA changed course, stating that employers do not have to require vaccinated employees to wear masks and socially distance. With the CDC’s recent pivot, now advising masks indoors in areas of substantial or high transmission, OSHA may follow suit and again advise employers to mandate masks for all employers, whether vaccinated or unvaccinated, when socially distancing is not possible.
Employers need to keep an eye on evolving government guidance and requirements regarding masks, update their policies accordingly, and reach out to counsel if they have questions or need assistance.