With the Centers for Disease Control and Prevention dropping mask requirements for fully vaccinated individuals and many local governments across Wisconsin following suit, employers are now having to decide whether to lift their mask-wearing rules.
Over the last 72 hours, Erik Eisenmann has been fielding calls from companies across Wisconsin wondering how to best approach the situation.
Eisenmann heads the Labor and Employment practice group of Husch Blackwell, a national law firm with an office in Milwaukee.
Husch Blackwell employees who don't work in the Milwaukee or Chicago offices, where local mandates are still in place, are being asked to tell the law firm if they’ve been vaccinated. If they are fully vaccinated, they don't have to wear a mask. If the employee chooses not to respond, or hasn’t been vaccinated, they must wear a mask, Eisenmann said.
Other businesses are asking employees to provide copies of vaccination cards.
The U.S. Equal Employment Opportunity Commission allows employers to ask workers to prove they are vaccinated and businesses to ask their customers to provide proof, Eisenmann said.
"Contrary to what some employees might think, that is not medical information that is prohibited under the Americans with Disabilities Act," Eisenmann said. It’s also not protected by The Health Insurance Portability and Accountability Act, commonly known as HIPPA.
Since the CDC’s announcement Thursday, more and more national companies have announced they are eliminating their mask-wearing requirements.
On Monday, Target and CVS said they would end mask requirements for fully vaccinated customers and employees, joining Walmart, Starbucks, Trader Joe’s, Costco and other businesses.
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The retailers are still "strongly recommending" unvaccinated customers and employees wear masks.
Eisenmann tells companies if they are removing a mask mandate and moving to an honor system, they’re doing so at a risk — especially because employees can’t legally opt to work from home, unless they have a bona fide medical reason.
He said there is potential a company could receive an OSHA citation for not maintaining a safe workplace, or a worker’s compensation claim.
"I think if an employer is going to say, 'We’re requiring you to come back,' then the employer is going to have to take some steps to verify vaccine status or maybe they are just going to say, 'Everyone is going to have to wear masks,'" Eisenmann said.
As the vaccination rate goes up daily and eligibility expands, more companies are going to be faced with the decision.
A recent survey from Milwaukee’s downtown business improvement district found nearly 55 percent of employers’ plan to return to work by September and more than 70 percent plan to return to work by the end of 2021.
The survey targeted office building managers and employers representing approximately 17,000 employees.
Matt Dorner, the economic development director for the downtown district, said the city and employers are responding to the guidance that is coming from the CDC.
As things continue to open up and restrictions are scaled back, more companies have employees reporting back to the office, Dorner said.