Herndon, USA - April 27, 2020: Virginia Fairfax County building exterior sign entrance to Mom's Organic Market store with request to wear face mask due to covid-19 pandemic.

Are Employers That Ditch Mask Mandates Liable for COVID-19 Infections at Work?

By Chloe Reichel

Last week, in response to U.S. Centers for Disease Control and Prevention (CDC) guidance indicating that vaccinated individuals need not wear face coverings indoors, a number of states and businesses swiftly did away with indoor mask mandates.

Widespread criticism followed, focusing on the dangerous policy vacuum that now exists. The CDC has suggested unvaccinated individuals follow an honor system and continue masking — but such an honor system is difficult, if not impossible, to enforce.

In the absence of indoor mask policies, individuals face increased risk of exposure to the virus. And some groups are particularly at risk of contracting the virus now, including immunocompromised individuals, for whom vaccines may not confer protection, and children under the age of 12, for whom a vaccine has not yet been authorized.

To better understand the new guidance and its implications for workers who are no longer protected by mask mandates, I spoke with Sharona Hoffman, an expert in health and employment law. Hoffman is the Edgar A. Hahn Professor of Law, a professor of bioethics, and Co-Director of Law-Medicine Center at Case Western Reserve University School of Law. In our interview, Hoffman explained whether an employer may be held liable if an employee contracts COVID-19 after an occupational exposure, and highlighted other key issues to anticipate regarding COVID-19 and the workplace.

Chloe Reichel: Businesses are dropping indoor mask policies in light of the recent CDC guidance. What does that mean for an employee, if they contract COVID-19 in the workplace?

Sharona Hoffman: I think that’s a risk that we’re taking now, and I think the CDC’s very sudden turnaround was a mistake.

If the employer is following those guidelines, the employee is going to be out of luck.

And I don’t think an employee will have any recourse, because the employer is going to be following CDC recommendations and saying if you’re vaccinated, you don’t need a mask, and if you’re not vaccinated, you should wear a mask. But we have no enforcement mechanism. We don’t have vaccine passports, we don’t have any mandates, and the CDC didn’t recommend mandates for checking people’s vaccine status — they said it’s an honor system.

And so, if the employer is following those guidelines, the employee is going to be out of luck. The employee is just at risk. One could say the employee should change jobs and be in a job where he or she is not exposed to a lot of people. But the employer is not violating any law or any guidance.

CR: And so what recourse would employees have, beyond finding another job?

SH: They don’t. That’s the problem with lifting the mask mandate so suddenly, and at a point where we don’t have a majority of the population vaccinated.

CR: What do you think should be done as a next step in order to protect employees?

SH: I would like to close our eyes, and go back to a week ago, and start over.

Getting compliance, once you’ve “liberated” everyone is going to be really hard.

It’s going to be really, really hard to retract the guidance. I mean, every store here in Cleveland has taken away their signs about a mask requirement. And going back to one is, I think, pretty much politically impossible.

It would be a good step to have the CDC say, “We made a mistake. Outdoors, you can keep your masks off, but indoors, until we reach some kind of benchmark, or this percentage of population vaccinated, we are going to have to have masks on.”

But getting compliance with that, once you’ve “liberated” everyone is going to be really hard. You’re going to have a political backlash. And it’s going to make them look bad.

CR: If a state maintains its indoor mask mandate, and it’s not being followed in a workplace setting, then there is potential for liability on the part of the employer, if an employee contracts COVID-19?

If there is a state rule that says you have to require masks in your place of business, then there may be a cause of action.

SH: Yes, I believe so. Because states can generally add additional protections.  Usually the federal standard is the floor, and states can add additional protections for their citizens. For example, in the area of HIPAA, the HIPAA privacy rule sets the minimum standards for privacy, and states have, in many cases, added additional ones, and so if you’re operating in their state, you have to follow the state guidelines.

If there is a state rule that says you have to require masks in your place of business, then they need to follow that. And if somebody gets sick because they didn’t require that or enforce that, then there may be a cause of action.

So, it is up to employers to follow whatever the legal standard is in their state. But there are not a lot of governors that are sticking to indoor mask mandates.

CR: What other issues do you anticipate regarding COVID-19 and the workplace, as mask mandates are dropped and the U.S. moves to reopen?

SH: I think the big question is going to be vaccine mandates.

Now that we don’t even have a mask requirement anymore, there’s more reason to have vaccine mandates.

To protect their productivity, and to avoid having to shut down, employers are going to think about vaccine mandates. Now that we don’t even have a mask requirement anymore, there’s more reason to have vaccine mandates, because you’re not going to have other protections in the workplace.

Employers are permitted to establish vaccine mandates for their employees. The Equal Employment Opportunity Commission (EEOC) has said that that’s fine, as long as they have exceptions for people who cannot take them for medical reasons or religious reasons. So that is something employers can do, but they don’t have to.

And you could have people angry either way — either because they’re required to be vaccinated, or because coworkers are not required to be vaccinated.

This will be a difficult decision for employers.  But I have to emphasize that if they are not violating any legal standard or any mandate, if they are following federal guidelines and state guidelines, then I don’t think there’s any cause of action for workers who become sick.

There had been some discussion of vaccine passports and whether we would have those — I think that’s a thing of the past, because the CDC has said it’s an honor system. So who’s going to be interested in vaccine passports, other than perhaps the transportation industry and other settings where masks are still required?

So, it’s a really dramatic turnaround that could potentially undo a lot of the progress that we had made in terms of public health compliance.

Chloe Reichel

Chloe Reichel is the Petrie-Flom Center’s Communications Manager. She serves as Editor-in-Chief of the Bill of Health blog and leads the Center's broader communications efforts.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.