Mask and Vaccine Mandates Heat Up: Employers Have Options, but Consistency Is Key

As COVID-19 vaccines became widely available in the United States, some regions lifted lockdowns and mask mandates, and schools gradually reopened. Many employers had plans in place to reopen their doors to employees.

However, as has happened multiple times during the pandemic, the tide is turning.

According to data from the U.S. Centers for Disease Control and Prevention (CDC), localized outbreaks have led to rising cases, hospitalizations, and deaths across many states, and these outbreaksare driven by the Delta variant. The agency's website notes that areas with low vaccination rates have the highest rates of transmission and severe outcomes, and even vaccinated individuals may experience "breakthrough infections."

This reality is prompting employers to adjust their strategies, with a growing list of companies reassessing their return-to-work plans over the past three weeks. Some businesses, such as retailer Target,have reinstated mask requirements for employeesand recommend that customers wear masks in areas with high transmission risk. Others, like Tyson Foods and Microsoft, are venturing into areas few companies have previously attempted:issuing vaccine requirements for on-site employees。

Lindsey Conrad Kennedy, a member of the law firm Eckert Seamans, said keeping up with the pace of current developments is challenging for employers. "Many people have pandemic fatigue right now," she said. "Employers are frustrated in trying to keep their businesses compliant."

But regardless of the approach employers take and how they enforce policies, Conrad Kennedy and other legal sources emphasize the importance of consistency and transparency.

The return of mask mandates

Masks are only part of the compliance equation. E. Pierce Blue, a senior attorney at Morgan Lewis, said in an email that many employers adopted CDC guidance issued in May, which said fully vaccinated individuals could resume activities without wearing masks.

However, since July 27, the CDC'sinterim guidancefor fully vaccinated people recommends wearing masks indoors in public settings in areas with "substantial" or "high" transmission—which, according to the agency's data, currently includes most U.S. counties.

Blue said employers will need to pivot to monitoring transmission rates by county and reimposing requirements where necessary, or reimposing them nationwide.

Employers that choose the former approach should ensure updated policies are "clear, unambiguous, and in writing," Brooke Schneider, a senior associate at Withersworldwide, said in an email. "This ensures everyone receives the message, the policy is enforced uniformly without improper considerations, and it gives employers a basis to stand on when facing resistance."

Schneider said employers can communicate initially in meetings or face-to-face settings, then follow up in writing. If employees are resistant, "it's important to reiterate that the employer has an obligation to protect the health and safety of all employees, and that the employer is making decisions based on medical guidance and in the best interest of the entire workforce," she added.

Conrad Kennedy also stressed the importance of clear, early, and frequent communication of policies, while ensuring consistency in enforcement. "Inconsistent enforcement, or no enforcement at all, is a recipe for disaster for employers in either case," she said. Those responsible for enforcement must document violations and follow disciplinary procedures when appropriate.

The rise of vaccine mandates

Blue said the trend of employers implementing vaccine mandates follows several major developments, including the U.S. Equal Employment Opportunity Commission's (EEOC) May release ofupdated technical assistance. But Blue added that recent court rulings have provided legal support, including aruling upholding a Texas hospital's vaccine mandate. According to NPR, in July a federal judge also blocked a lawsuit against Indiana University's requirement that students be vaccinated before returning to campus in the fall.

"Many companies still prefer not to mandate vaccination unless it's necessary to resume operations and keep employees healthy," Blue said. "That said, some companies adopting mandatory vaccination policies makes it easier for other companies to do the same."

Schneider said employers considering mandates need to think about factors affecting their specific workplaces.

For example, they may need to consider whether the workplace is a public space and whether employees can safely maintain social distancing. They also need to consider whether their workforce includes individuals particularly vulnerable to COVID-19 or severe symptoms, such as older employees or those with known health issues.

Conrad Kennedy noted that unionized workers may be subject to employment agreements or collective bargaining agreements, which can affect the situation.

"In terms of high-profile companies, I think actions by large companies influence smaller ones and give them more confidence to set their own mandates," Schneider said. "However, some employers may want to see how these mandates affect large companies' workforces before acting themselves."

Can employees be fired for not getting vaccinated?

Schneider continued that employers should also anticipate some resistance to vaccine mandates and plan how to handle those who refuse.

For employees who refuse to comply with mask requirements, Conrad Kennedy said termination can be an option; "if an employee refuses to comply with what is essentially a safety protocol, then termination is viable."

But she added that termination for refusing to comply with a mandatory vaccination policy "may be slightly riskier," partly due to the sensitivity of the issue. EEOC's technical assistance notes that federal civil rights laws require employers to provide reasonable accommodations for employees who are not vaccinated due to a disability or sincerely held religious beliefs, practices, or observances. Schneider said if employers encounter resistance to mandates, they should first engage in discussions to understand employees' reasons.

Conrad Kennedy said that in cases where an employee's reason for refusing vaccination does not fall into the categories listed by the EEOC, termination "may be on the table," similar to other situations where employees do not comply with organizational policies. But she noted, "It would be wise for employers to consider alternatives because legal uncertainty remains."

Both Conrad Kennedy and Schneider noted that terminations could raise staffing issues. Schneider said even if termination is viable for employees who refuse vaccination, employers need to ensure they have the necessary staffing and manpower.

"There could be a significant number of employees who refuse vaccination but don't have medical or religious reasons," Conrad Kennedy said. "Do you really want to fire them? Do you want to allow business operations to be disrupted?"

On the other hand, she noted that vaccine requirements might help retain employees who are concerned about returning to the workplace with unvaccinated individuals. Additionally, employers can consider alternatives to termination, such as placing employees on leave; "that's a disciplinary action, but it's something I see employers doing often," Conrad Kennedy said.

But Schneider said, similar to mask requirements, employers also need to be consistent in vaccination policies, "consistency in enforcement is crucial for establishing the legitimacy of the policy and the proper decision for disciplinary action."