UPDATE: Pennsylvania officials have announced that the state's mask mandate will end on either June 28, or when the state hits 70% vaccination of those 18 and older, whichever comes first.
Pennsylvania officials have accepted new Centers for Disease Control and Prevention COVID-19 guidance for non-health care settings and will no longer require fully vaccinated individuals to wear masks in most situations.
The CDC recommends, however, continued use of masks for those vaccinated when they are in certain crowded indoor settings, such as hospitals, nursing homes, buses, airplanes, trains and homeless shelters. Those who have not been vaccinated will continue to be required to wear masks in most indoor environments and outdoors when proper social distancing is not an option.
Despite the new guidance, businesses and employers, subject to certain limitations, can still require customers and employees to wear masks in their Pennsylvania facilities. There is no requirement that employers and businesses must verify the vaccination status of their customers and employees. However, employers are permitted to verify employees’ vaccine status before allowing them to stop wearing masks, and doing so may help ensure compliance with certain federal regulators. According to the Equal Employment Opportunity Commission, this is not a medical inquiry, and there are no federal or Pennsylvania law issues related to such inquiries of employees.
It is unlikely that an employer or business will be held liable if an unvaccinated individual did not wear a mask on their premises. We do recommend, however, that employers and businesses revise their current signage to state that unvaccinated individuals are still required to wear masks. Also, from an employment liability perspective, the U.S. Occupational Safety and Health Administration requires employers to provide a safe working environment, free of all recognized hazards. To make sure your workplace is safe and fully OSHA-compliant, employers may wish to verify that employees are vaccinated before allowing them to go without masks. An outbreak of COVID-19 in the workplace if unvaccinated employees fail to wear masks not only leaves the employer open to possible OSHA scrutiny and penalties, but also could create workers’ compensation liability.
Pre-existing Pennsylvania Department of Health COVID-19 requirements unrelated to mask wearing, such as cleaning protocols and temperature taking, remain in effect until May 31. Capacity limitations are still in effect as well, although this week the state announced that on May 17, outdoor capacities will increase to 75% and indoor capacities will increase to 50%. On May 31, all capacity limitations will be over.
If you have any questions on how the new masking regulations will affect your business, please contact Joshua Schwartz, Daniel Desmond, Martin Siegel, Brian Korman or any attorney in the Barley Snyder Business or Employment practice groups.
DISCLAIMER: The information in this alert should not be construed as legal advice to be relied upon nor to create an attorney/client relationship. Please note that the reader’s or an industry’s specific situation or circumstances will vary and, thus, for example, an approach that is advisable in one industry may not be appropriate in another industry. If you have questions about your situation or about how to apply information contained in this alert to your situation or industry, you should reach out to an attorney.
The views expressed in this alert are those of the individual author and do not necessarily reflect the views of the firm or the firm’s clients. The response to the COVID-19 pandemic is particularly challenging, evolving and, in many cases, can be controversial. Any views expressed in this alert are not intended to advocate for or endorse a particular governmental response to the pandemic.