How to Convince Employees to Keep Wearing Masks

​What should employers do when vaccinated employees and other workers want to stop wearing masks? Communicate why employers continue to require all employees to wear masks, adopt clear face-mask policies and explain the consequences of failing to comply with the policies.

"Mask policies have never been popular, and continuing to enforce these policies will unquestionably become more difficult as more people are vaccinated," said Tory Summey, an attorney with Parker Poe in Charlotte, N.C.

Philippe Weiss, president of Seyfarth at Work in Chicago, said some employees have approached employers asking, "I've had my shots. Now how soon can I get this darn thing off my face?"

Some employees have become emboldened to stop wearing masks because of data showing the extremely high efficacy rate of the vaccines. U.S. Centers for Disease Control and Prevention (CDC) guidance notes that fully vaccinated individuals can be unmasked in limited circumstances, and a growing number of states are dropping their mask mandates.

"There is a risk that employees may misinterpret these state-level changes to mean that employers in those states cannot maintain a mask policy," said Stephanie Gantman Kaplan, an attorney with Blank Rome in Philadelphia.

The fact that an employee has received a vaccine does not give him or her the right to stop following COVID-19 precautions, particularly in the workplace, said Klair Fitzpatrick, an attorney with Morgan Lewis in Philadelphia, and Daniel Kadish, an attorney with Morgan Lewis in New York City, in an e-mail.

Explaining Why Masks Are Still Needed

Clearly communicating a company's safety rules is particularly important in a jurisdiction that has stopped mandating masks, said Howard Lavin, an attorney with Stroock in New York City.

Employers need to communicate to employees that "the requirement to wear a mask is about protecting everyone," said Carrie Hoffman, an attorney with Foley & Lardner in Dallas. Explain to employees that the law does not prohibit employers from imposing requirements on workers to keep them safe, she added.

"A perception by employees that masks are no longer required in the workplace is not supported by the current CDC guidance," said Paul Scheck, an attorney with Shutts & Bowen in Orlando, Fla.

The CDC suggested in March guidance that those who are fully vaccinated can gather privately in small groups with other fully vaccinated people without wearing masks.

Despite this limited exception, the CDC is still recommending that people, even those who are fully vaccinated, continue to wear masks and keep their distance from others in public, as well as while around unvaccinated people at higher risk for severe illness from COVID-19. The CDC continues to recommend that fully vaccinated people can visit with unvaccinated members of a single household without wearing a mask so long as everyone is at low risk for severe cases of COVID-19. Otherwise, the CDC still recommends that vaccinated people wear masks and maintain social distance in all other settings.

"Except for limited circumstances, a workplace is rarely a small gathering," Scheck noted. "Additionally, until much greater progress is made with the vaccination process, there will remain large numbers of unvaccinated individuals in the workplace." Moreover, vaccinated individuals probably don't know which of their colleagues are at high risk for COVID-19 complications.

The Equal Employment Opportunity Commission still permits employers to require employees to wear masks during the pandemic, he added.

Putting a Policy in Place

A clear face-mask policy is a key part of each employer's messaging.

The policy should be aligned with guidance from government agencies, such as the Occupational Safety and Health Administration, as well as federal, state and local public health officials, including the CDC.

The policy should require all employees, regardless of vaccination status, to wear masks while inside the employer's premises, and emphasize that adherence to the face-mask policy is the responsibility of each employee, Scheck said.

He also recommended that the policy require employees to wear masks whenever necessary to comply with applicable government face-mask orders and whenever a supervisor determines that wearing a mask is necessary for specific job orders.

Some cities and localities may require masks even if they aren't required on a state level, noted Michael Schmidt, an attorney with Cozen O'Connor in New York City.

"The policy should also provide that if an employee declines to wear a face mask as required, the employee will be referred to human resources," Scheck said. "Human resources should be prepared to determine if the employee has a medical reason exempting the employee from compliance with the face-mask policy."

If so, the employer should engage in the Americans with Disabilities Act's interactive dialogue with the employee to verify the employee cannot wear a mask for such reason, and determine what reasonable accommodation, such as telecommuting, might allow the employee to continue working without wearing a mask.

Enforcing the Policy

If the employee does not offer a medical reason for not wearing a mask, Scheck said the employer should:

• Determine why the employee is not following the policy.
• Ensure that the employee understands the policy.
• Reinforce that unless the employee has a medical or personal safety reason for not complying, he or she must follow the policy.
• Emphasize that failure to comply could result in disciplinary action.

"Should the behavior be repeated, the process should be completed again, and the degree of discipline should be increased, up to and including suspension and potential termination," he said.

Staying the Course

"Vaccinations are great news and are a huge step toward returning to some semblance of normalcy in the workplace," Scheck said.

"Until the rate of vaccination greatly increases and more data becomes available regarding the long-term effectiveness of the vaccine, however, employers must continue to maintain a workplace that is safe for all of their employees," he added. "To ensure the safety of all employees, not just those who have been vaccinated, all employees must be required to continue to wear masks in the workplace for the foreseeable future."