As the Omicron wave recedes, a raft of states have announced plans to lift their mask mandates.

In the past few days alone, California, Connecticut, Delaware, Illinois, Massachusetts, Nevada, New Jersey, New York, Oregon, and Rhode Island have announced changes to their face covering rules. And if the number of Omicron cases continues to dwindle as expected–and remain low–more states are sure to follow.

We highlight key changes in California, Illinois, and New York below, and touch on some points employers should consider before tossing masks aside in the workplace.

California

California’s Department of Public Health announced it will let its Omicron-modified indoor mask mandate expire on Tuesday, February 15.  Beginning Wednesday, February 16, vaccinated individuals will be allowed to go maskless in most indoor public settings, unless a more restrictive local order remains in place.  Either way, the state’s pre-Omicron guidance will remain in effect, which means unvaccinated individuals must still wear masks in indoor public settings and workplaces.  Workplaces also must continue to follow the COVID-19 prevention standards set by Cal/OSHA.

Illinois

Illinois Governor Pritzker announced the state will lift its indoor mask requirement starting Monday, February 28.  With the fastest rate of decline in hospital metrics since the pandemic began, Illinoisans will soon be able to go maskless indoors in most instances.  However, masks will still be required in schools, health care facilities, prisons, and other designated settings.

New York

New York Governor Hochul announced an end to the state’s indoor mask-or-vaccine requirement starting Thursday, February 10.  Pointing to plummeting case counts and hospitalizations, Governor Hochul said it is time to let counties, cities, and businesses make their own decisions.  But not all mask requirements have been lifted. At the state level, masks are still required in schools, health care facilities, nursing homes, correctional facilities, public transit hubs, and some other specific settings.

What does this mean for employers?

Before employers allow their employees to show their faces at the office, employers should take these considerations into account.

  • While some states may be dropping mask mandates, both the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) still recommend face coverings  for unvaccinated individuals. Employers are still required to provide workers with a safe and healthful workplace under OSHA’s General Duty clause (Section 5(a)(1)), and with the CDC not yet endorsing the lifting of mask mandates, the jury’s still out on whether a “safe and healthful” workplace continues to include masks. Some states, including Mississippi and Nevada, have conditioned their liability shield law protections on employers following both guidance and requirements for COVID-19, so complying with CDC / OSHA guidance may be required for a company to take advantage of COVID-19 liability shield laws.  And potential exposure for third party or employee injury claims can increase if a company does not follow CDC / OSHA guidance, even when that guidance is not mandatory. Therefore, even in jurisdictions which no longer require indoor masks, employers may wish to consider CDC and OSHA guidance as part of their return-to-office plans (subject to local restrictions).
  • Federal contractors should remain mindful of Executive Order 14042 (EO) and the Safer Federal Workforce Task Force Guidance (Guidance) (which we blogged about here) requiring all federal contractors to ensure that all covered contractor employees are fully vaccinated for COVID-19 (unless the employee is legally entitled to a disability, medical, or religious accommodation). The Guidance also includes masking, distancing, travel and quarantine rules. While the EO’s vaccine mandate has been blocked nationwide by a Georgia federal district court, that court stated on January 21 that it did not block the Guidance’s other components–including its masking rules. On the other hand, injunctions against the EO issued in other courts, such as in Missouri and Kentucky, have not been clarified, making it difficult to determine if those injunctions bar enforcement of all of the EO’s requirements, or just the vaccine mandate. And an injunction issued by a Florida court covering all contracts within Florida bars all aspects of the Guidance. The EO remains subject to appeal in various appellate districts, and any one of those courts could determine that the federal government does not have congressional authority under the applicable federal procurement statute to require masks (or testing or distancing) in workplaces. Bottom line: the current landscape of the federal contractor EO is patchwork, but employees in some covered contractor workplaces are now required to wear a mask – even if state/local law doesn’t require it.
  • As always, employers should keep in mind that local county or city mandates may still apply. Case in point: California’s Santa Clara County has announced it will not join the state in lifting its indoor mask mandate. Los Angeles County also will keep its indoor mask mandate in place until the county’s level of transmission stays at or below the “moderate” level as defined by the CDC for two straight weeks and there are no new variants of concern circulating in the community. The CDC defines moderate transmission to be a cumulative, seven-day new case rate of less than 50 per 100,000 residents. As of today, the CDC’s website shows LA County as having a weekly average of 459 cases per 100,000 residents, a 53% reduction from the week before. If case rates continue to drop, LA County could lift its mask mandate as early as March. Elsewhere, though the state of Pennsylvania has no current mask mandate, Philadelphia city officials have reportedly said that Philadelphia’s mask mandate could remain for months. And even where counties have announced that they will lift mask mandates, those easing of restrictions may come with other requirements such as proof of vaccination and boosters.
  • Employers should also watch out for other, non-mask-related COVID-19 requirements that may still apply. Word on the street is that Chicago will likely lift its mask mandate at the end of February along with Illinois, and it has been reported that Chicago’s proof of vaccination mandate (requiring employers to determine the vaccination status of each employee and require COVID-19 testing for those who are not fully vaccinated) could also be lifted by the end of the month–but only if a decline in COVID metrics allows.
  • One good way to stay on top of all of the quickly-changing developments: make it a habit to check in with our regularly-updated 50-State Tracker, which provides key recent developments in the 50 states plus Washington, D.C., identifies and links to state-wide orders and guidance important for reopening, and includes a “What’s Open table for each jurisdiction highlighting the reopening status in the office, manufacturing, retail and bars/restaurants sectors.

For assistance with mask mandates, reopening plans, and other employment matters, contact your Baker McKenzie employment attorney.