More than a year into the COVID-19 pandemic, many individuals and businesses see light at the end of the tunnel. On May 12, 2021, Ohio Governor Mike DeWine announced that the Ohio Department of Health will rescind all COVID-19 related health orders effective June 2, 2021, except for those relating to nursing homes and congregate living centers.
The following day, the US Centers for Disease Control and Prevention (CDC) announced new guidelines stating that fully vaccinated Americans no longer need to wear a face covering or practice social distancing in any setting, other than in areas of public transportation. “Fully vaccinated” means being two weeks past the recommended final dose of the applicable vaccine. The CDC emphasized the state and local laws and workplace policies would prevail over the CDC guidelines.
On May 14, Gov. DeWine said Ohio would modify its current health order to align with the CDC guidelines. Therefore, in many places in Ohio, fully vaccinated persons will be able to resume activities as if the pandemic were behind them.
Ohioans who are not fully vaccinated will remain subject to the state’s mask and social distancing orders until June 2. Even after June 2, Ohioans living, working or visiting in nursing homes and congregate living centers will remain subject to the customary restrictions regarding face coverings and social distancing.
Workplaces and retailers remain free to impose rules stricter than what required or recommended by state and federal agencies. Some major retailers said shortly after the CDC’s May 13 announcement that they intend to maintain their mask policy, at least until they can fully reevaluate recent developments.
As businesses look to revise their workplace policies, they have been challenged by inconsistencies among federal agencies’ views of the pandemic. In particular, the Occupational Safety and Health Administration, until recently, maintained guidance that continued to strongly encourage masks and social distancing for all persons in the workplace, regardless of vaccine status. While this more restrictive view is still OSHA’s “official” position, OSHA has now stated it is in the process of revising its guidance, and in the meantime, the CDC’s less restrictive guidelines are “appropriate to protect fully vaccinated workers.”
Employers anxious to fully eliminate a mask requirement in the workplace are advised not to do so at least until Ohio’s orders, enforceable by law, expire on June 2. After that date, businesses will need to evaluate risks in light of CDC and OSHA guidelines, as well as local COVID-19 conditions. The CDC and OSHA guidelines lack the force of law, but could provide a “standard of care” or basis of civil liability. Employers could be vulnerable to a claim that a person contracted COVID-19 at their place of business because the business was not meeting government-recommended standards.
Finally, many employers may elect to impose different sets of work rules on vaccinated and non-vaccinated employees and patrons. In most cases, this would be generally legally acceptable but administratively difficult. The Equal Employment Opportunity Commission has said an employer can ask an employee if he or she has been vaccinated – but says further that follow-up questions cannot be asked about why an employee is not vaccinated, because such questions could elicit medical information. Before employers adopt a policy implementing different rules on vaccinated and non-vaccinated employees, they should educate themselves on the emerging best practices in adopting and enforcing such a policy.
As various federal and state agencies stake out positions on the virus that may be in conflict, challenges for businesses will remain. Employers are encouraged to seek counsel with a member of Critchfield’s employment law group for advice best suited for their situation.