On May 17, 2021, Massachusetts Gov. Charles Baker announced that effective May 29, 2021 the Commonwealth will lift all remaining COVID-19 restrictions on businesses. In addition, effective May 29, 2021 the Commonwealth will rescind its current face covering order. Gov. Baker’s announcement expedited the Commonwealth’s anticipated full reopening date by more than two months.

RESTRICTIONS ON BUSINESSES LIFTED

On May 29, 2021, all COVID-19 restrictions on businesses, including limitations on capacity and gathering limitations, will be lifted.

MASK MANDATE RESCINDED; MASSACHUSETTS TO FOLLOW CDC GUIDANCE

Effective May 29, 2021, the Commonwealth will rescind its current face covering order and will replace it with new guidance consistent with guidance from the Centers for Disease Control and Prevention (the “CDC”) for vaccinated and unvaccinated individuals. Under current CDC guidance, fully vaccinated individuals may (with a few exceptions) resume activities without wearing masks or physically distancing in both indoor and outdoor settings. In Massachusetts, face coverings will remain mandatory for both vaccinated and unvaccinated individuals on public and private transportation systems, in healthcare facilities, and in other facilities housing vulnerable populations. Face coverings are also required indoors for staff and students of K-12 schools and early education providers.

Unvaccinated residents are advised to continue wearing face coverings and to continue distancing in most settings.

FEDERAL AGENCIES LIKELY TO UPDATE GUIDANCE

In the wake of the new guidance from the CDC, other federal agencies are also considering changes to their existing COVID-19 guidance. On May 17, 2021, the Occupational Safety and Health Administration (“OSHA”) indicated that it is “reviewing the recent CDC guidance and will update [its] materials on [its] website accordingly.” Until the updated materials become available, OSHA advises employers and workers to refer to the CDC guidance.

The Equal Employment Opportunity Commission (“EEOC”) also appears likely to issue updated guidance, as the agency announced that it is considering any impact that the recent CDC guidance has on the COVID-19 technical assistance provided by the EEOC to date. We summarized the EEOC’s guidance on employer vaccination programs in our December 18, 2020 client alert.

DECISIONS REMAIN FOR MASSACHUSETTS EMPLOYERS

With full reopening on the horizon for many businesses, Massachusetts employers are considering alternatives for workplace standards for employee populations that include both vaccinated and unvaccinated workers.

Some employers are strongly encouraging employees to be fully vaccinated while others are requiring that employees be fully vaccinated to return to workplaces. Subject to the limited exceptions from mandatory vaccinations for disability and religious reasons identified by the EEOC, as well as a possible legal challenge for so long as vaccines have only “Emergency Use Authorization,” mandatory vaccination policies should be permissible.

Whether an employer mandates vaccinations or not, employers need to consider whether to implement mask and distancing requirements for unvaccinated employees while allowing vaccinated employees to work and congregate freely without masks and without social distancing.

In his May 17 press conference, Gov. Baker broadly stated that Massachusetts employers may choose to implement their own requirements for vaccination and masking. Gov. Baker encouraged businesses “to do whatever works for them, for their employees, and for their customers” and indicated that the people of Massachusetts should honor the requirements of private organizations. However, the governor recommended, consistent with CDC guidance, that non-vaccinated people continue to wear masks and practice social distancing.

Employers that follow current CDC guidance would therefore lift all restrictions on vaccinated employees while requiring unvaccinated employees to continue to wear masks and practice social distancing. This may lead to objections by unvaccinated employees with a disability, who may contend that requiring them to wear masks discloses disability-related information. Such employees, and those with religious-based objections, may also claim that the differential treatment results in discrimination against them.

In the absence of guidance to the contrary, these do not appear to be likely grounds for successful challenges to masking requirements. The EEOC has stated that requiring employees to show proof of vaccination is not a disability-related inquiry, as “there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.” Accordingly, the fact of wearing a mask should not be construed as a disclosure of disability-related information. Moreover, given the EEOC’s deference in other respects to public health guidance during the pandemic, it is expected that maintaining workplace standards that are consistent with CDC guidance should be permissible. There may well be further EEOC, OSHA and CDC guidance on such workplace issues that will provide additional direction for employers.