Employment Law Report
Can Kentucky Employers Lift Mask Requirements For Vaccinated People?
By: Michelle D. Wyrick
On May 13, 2021, the Centers for Disease Control (“CDC”) issued the welcome guidance that fully-vaccinated individuals[1] no longer need to wear masks or practice physical distancing except where required by federal, state, or local laws, including local business and workplace guidance, nor do they need to quarantine or be tested for COVID-19 if they have been exposed to someone who has COVID-19, except in limited circumstances, as long as they remain asymptomatic. Notably, the CDC’s guidance is not intended to apply to healthcare settings. Nor does it lift mask requirements while using public transportation.
What does the CDC’s new guidance mean for employers and vaccinated employees in Kentucky? On May 13, 2021, Governor Beshear issued Executive Order 2021-326, which amends previous executive orders and indicates that fully-vaccinated individuals do not have to wear face coverings except when using public transportation or when in schools or preschools, day cares, healthcare or long-term care facilities, correctional institutions, or homeless shelters. Governor Beshear has stated that he intends to lift mask requirements for all people on June 11, 2021.
For now, employers in Kentucky who want to lift mask requirements for fully-vaccinated individuals may do so, but it is not required. Some employees may be more comfortable in a work environment in which masks are required. Others will want mask requirements removed as quickly as possible. When deciding whether to require masks for fully-vaccinated employees, employers may want to consider their work settings, including how closely their employees work together, whether customers and other individuals whose vaccination status is unknown routinely enter the workplace, and whether the employer has locations in different states that currently have different face covering requirements for fully-vaccinated people.
As a practical matter, it may be difficult for employers to enforce a mask requirement that applies only to fully-vaccinated employees when they do not know which employees or how many of their employees have been fully vaccinated. According to the Equal Employment Opportunity Commission (“EEOC”), employers may ask employees if they are vaccinated, although they should be careful about asking unvaccinated employees why they are not vaccinated to avoid eliciting information about a disability. In connection with any policy that permits fully-vaccinated employees in Kentucky not to wear masks, employers may require proof of vaccination, ask employees to certify that they are fully vaccinated, or rely on the honor system. If an employer gathers information about employees’ vaccination status, however, that information should be treated as confidential.
If an employer chooses to do away with mask requirements for fully-vaccinated employees, the employer should consider making clear that employees who want to wear masks are still permitted to do so. In addition, employers should watch for further guidance from the CDC and other agencies, including the Occupational Safety and Health Administration (“OSHA”) and the EEOC.
[1] A person is fully vaccinated when he has had all doses of a vaccine (2 doses for either Pfizer or Moderna and 1 dose for Johnson & Johnson) and two weeks have passed after the last dose was administered.
