To Mask or Not to Mask

Dear Clients and Friends,

To mask or not to mask – that is the question! With New Hampshire’s latest announcements, the restrictions are easing up, but the answer to the question isn’t clear cut. It’s important for employers to keep in mind guidance from all sources – federal and state – in deciding who, if anyone, should be required to wear masks in the workplace. Travel, screening, exclusion, and quarantine requirements should also be considered in light of updated guidance. This alert is intended to pull together the latest guidance on all these issues.

Federal and State Face Mask Guidance – A quick snapshot of the latest guidance from various state and federal sources is helpful to set the stage:

NH DHHS

  • New general guidance as of June 17, 2021, is that anyone – regardless of vaccination status – can choose not to wear a mask, so long as they do not have COVID-19 symptoms and they are not within a business or organization that requires masks.
  • NH DHHS makes it clear that businesses and organizations can choose to require face masks for its employees, visitors, and customers, if desired.
  • NH DHHS also recommends that individuals who are immunocompromised or at increased risk for getting infected wear masks in high-risk locations.
  • See the NH DHHS Face Mask Recommendations for further information.

CDC

OSHA

  • New guidance, which applies to most employers, was issued on June 10, 2021: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.
  • The new guidance recommends that employers provide unvaccinated and otherwise at-risk employees with face masks. Fully-vaccinated employees can go without masks.
  • The guidance is not mandatory; it is a collection of recommendations for employers to consider.
  • By implementing a multi-layered approach to preventing COVID-19 as described in the guidance, employers can demonstrate compliance with their general obligation under OSHA to provide a safe and healthy workplace.
  • Certain healthcare facilities must also follow OSHA’s new COVID-19 Emergency Temporary Standard, which requires face masks and other mitigation measures to protect employees in healthcare facilities.

NH Universal Best Practices

  • The Universal Best Practices, which are recommendations, not mandates, have not been updated since early May, so they do not reflect the most recent NH DHHS face mask recommendation, and instead still recommend face mask use for all employees.
  • The Best Practices do, however, encourage employers to review guidance from NH DHHS, and make frequent reference to NH DHHS publications, so it could be inferred that following the NH DHHS face mask recommendation is not inconsistent with the Best Practices, particularly if the employer follows other recommendations in the Best Practices to take a layered approach to preventing COVID-19 from entering your workplace.
  • See the NH Universal Best Practices for more information.

Putting it all together . . .

It is important for New Hampshire employers to consider the NH DHHS face mask recommendation – the least restrictive of all the guidance – in light of the OSHA guidance and other applicable standards, which may cause the employer to adopt a stricter approach in its workplace than if the employer were just following the NH DHHS recommendation alone. In other words, an employer might reasonably conclude that requiring unvaccinated employees to wear masks makes sense for mitigation of the virus and legal risk, even though it is not required by the NH DHHS guidance. The NH DHHS Face Mask Recommendations mention factors that businesses and organizations should consider when determining whether or not to require face masks.

If an employer changes its mask requirements, the change should be communicated to employees in writing. The written notice should state that employees are still free to wear a mask in the workplace, if desired, and that employees with disability-related or high-risk concerns should contact HR or a designated management representative to discuss the concerns and identify solutions.

New Guidance on What to Do When an Employee Tests Positive for COVID-19

On June 17, NH DHHS also published 5 Steps: When Your Employee Tests Positive For COVID-19, which describes for NH businesses “key steps for investigating and reporting COVID-19 cases and exposures.” As with the other guidance described above, these are recommendations, not mandates. Quoting from the document, the 5 steps are:

  1. Identify and Exclude Employees who Might Have COVID-19
  2. Identify and Notify Workplace Contacts and Recommend Monitoring and Testing
  3. Seek Guidance and Report Suspected Outbreaks
  4. Implement Return to Work Policy
  5. Limit the Spread

For detailed information, see the 5 Steps guidance at the link above.

Updated Travel, Screening, Exclusion, and Quarantine Guidance:

NH DHHS was busy on June 17 as it also published an updated NH COVID-19 Employer Travel, Screening, and Exclusion Guidance and a Quarantine Guide for Unvaccinated People Exposed to COVID-19 in their Household.

Travel:

  • The travel guidance remains the same – that unvaccinated people who travel internationally (except for essential travel to/from Canada) or on a cruise ship must quarantine.
  • Fully vaccinated people and those who are within 90 days of a prior COVID-19 infection that was confirmed with a PCR or antigen test are exempt from travel quarantine.

Screening:

Exclusion:

  • Regardless of vaccination status, employees with new or unexplained symptoms of COVID-19 should be excluded from the workplace.
  • Instruct symptomatic employees to self-isolate at home and contact their health provider for testing, even if they are vaccinated and even if they have previously had COVID-19.
  • They can return to work after a negative test OR after being fever free for 24-hours (and otherwise feeling better) and a health care provider assessment determines “they are considered low-risk or unlikely to have COVID-19 based on symptoms and risk factors.” Documentation of the healthcare provider assessment is not required.

 Quarantine:

The good news is that we are in a much better place than we were just a couple of months ago.  COVID-19 cases in New Hampshire have dropped as more people get vaccinated.  However, the answer to the question “to mask or not to mask” remains complicated as do recommendations on quarantine and other mitigating measures. In addition, there may be further changes depending upon how variant strains of the virus affect people. We will continue to monitor the situation and keep you updated.

We hope this information is helpful to you and that you are having a healthy and prosperous Summer!

Jen and Andrea

 

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

Direct:    603.621.7112                        Direct:  603.621.7118

Email: j.moeckel@clrm.com              Email:  a.chatfield@clrm.com

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