Should You Still Require Employees to Wear Masks?

Dear Clients and Friends,

What’s the deal with all of the conflicting guidance on masks? How are businesses and other organizations supposed to know what to do? We will break it down for you in this client alert.

New Hampshire recommends continued mask use for all people, vaccinated or not, while indoors at businesses or organizations when social distancing cannot be maintained.

  • The state-wide mask mandate has been lifted, but New Hampshire public health officials are still recommending mask use indoors at businesses and organizations.
  • The mask requirement for all businesses, organizations, and employees previously found in the Universal Guidelines has been replaced with a mask recommendation in the Universal Best Practices.
  • The New Hampshire Bureau of Infectious Disease Control issued recommendations earlier this week (available here) that continue to recommend that businesses require mask use indoors “irrespective of vaccination status.” Although the Bureau recommends indoor masking for all businesses, the guidance does allow that in small groups, where everyone is fully vaccinated, “strict social distancing and face mask use may not be necessary.” Note, however, that the Universal Best Practices do not currently recognize the small-group exception.

Why isn’t New Hampshire following the CDC’s approach of allowing fully vaccinated people to ditch their masks in most circumstances? The New Hampshire Bureau of Infectious Disease Control wrote in its guidance: “NH and most other states around the country continue to have a ‘substantial’ level of community transmission of COVID-19, and a large proportion of the NH population is not yet fully vaccinated. Therefore, the next several weeks are an important time of transition to drive COVID-19 numbers lower. While we know that vaccination is highly effective at preventing COVID-19 (both asymptomatic and symptomatic disease) and limiting transmission to others, population level mitigation measures will end the pandemic more quickly, protect the vulnerable and people unable to be vaccinated, and enable return to more normal societal functioning. Additionally, current CDC guidance is difficult for businesses and organizations to implement without developing a process to identify which people are fully vaccinated vs. not fully vaccinated. All of these considerations factored into our updated and clarified NH guidance . . . .” According to the guidance, New Hampshire public health officials plan to “re-evaluate face mask use recommendation in the next 3-4 weeks” and “expect to fully implement CDC guidance by the end of June.”

Do you have to require masks indoors in your workplace? It’s no longer required, but as noted in our last client alert, failing to follow the New Hampshire Universal Best Practices, which recommend masks for all people while indoors at businesses and organizations, could be used as evidence of negligence in the event of a lawsuit. In other words, even though the Best Practices are not mandatory, there could be legal consequences of failing to follow them, in addition to the consequence of continued spread of the virus.  The Bureau’s exception for small groups where everyone in the group is known to be fully vaccinated is potentially helpful and may apply to your workplace if you are a very small employer or may apply to small groups within your workplace, such as a small group of fully-vaccinated employees meeting in a conference room, away from others.  However, as noted above, the small-group exception is not currently recognized by the Best Practices. In addition, many workplaces include the presence of visitors, customers, vendors, and other members of the general public, making it difficult to know whether all are fully-vaccinated and qualify for the exception. Further, if not all employees in a workplace are fully vaccinated, it may be difficult to monitor vaccinated vs. unvaccinated at any one time.

We know how eager people are to say goodbye to masks and other COVID-19 protocols (and we are, too!). The vaccine is helping and the case numbers in New Hampshire are declining. Case numbers have almost dropped to the levels we experienced last summer. We are hopeful that within the next month or so, things will improve to the point where New Hampshire public safety officials feel they can completely eliminate the indoor mask recommendation for fully-vaccinated people. We will continue to monitor the situation and keep you updated.

We hope this information is helpful to you.

Jen and Andrea


Jennifer Shea Moeckel, Esq.               Andrea G. Chatfield, Esq.

Direct:    603.621.7112                        Direct:  603.621.7118

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