Masking considerations as requirements are eased

With updated guidance from the Centers for Disease Prevention and Control that fully vaccinated people can resume activities without wearing a mask or physically distancing¹, questions have arisen over how organizations can implement these guidelines in a way that minimizes their risk of liability. The following are considerations for an organization in determining its response to the updated guidance:

Participants/Attendees

• As noted in the CDC guidance, masks and social distancing may still be required by state or local laws and regulations. Understand the rules still in place in your locality to make sure your organization remains in compliance with them. This may include capacity limitations in addition to masks and social distancing requirements.

• At this time, vaccines have not been authorized for use with children under the age of 12. Continue to practice the safeguards already in place for that age group.

• Recognize that people who will be visiting your facility will include those who are fully vaccinated, those who are partially vaccinated, and those who are not vaccinated. Offering options (such as separate areas or services) to the various groups can help address their comfort level, but consider maintaining current safeguards such as mask requirements and physical distancing in common areas where they may intermingle. Clearly communicate to participants about what to expect at your facility.

• In house of worship settings, it is becoming common to see “masks optional” and “distancing encouraged” services in addition to “masks required” services and online services to address the various vaccination status – and comfort level – of participants.

• Requiring proof of vaccination status for participants is a challenging question. State or local law may prohibit the reach/extent of requiring proof of vaccination. Understand the laws in your area. 

• For those organizations concerned about potential liability to those who choose to come onto their premises and subsequently become ill with COVID-19, the use of liability waiver forms is a consideration. A sample waiver form is provided but should be reviewed with your organization’s local legal counsel before using it.

Employees

• At this time, the Occupational Safety & Health Administration (OSHA) has not issued updated guidance related to worker safety. OSHA’s guidance from January 29, 2021, advised employers to not treat vaccinated employees differently from unvaccinated employees, stating, “Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant.”

• Employers should consult with their legal counsel before considering a proof of vaccination requirement for their employees.

¹Except where required by federal, state, local, tribal, or territorial laws, rules, and regulations.