On May 16, 2021, the Centers for Disease Control and Prevention (CDC) issued updates to its mask-wearing guidelines, advising fully vaccinated Americans that they no longer need to wear masks or maintain social distance either indoors or out, except where required by federal, state, local, tribal, or territorial regulations - including local business and workplace guidance.
Three days later, on May 19, New York Governor Andrew Cuomo announced that the state would adopt those recommendations, with a few exceptions: Pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings. In those contexts, everyone still needs to be properly masked at all times.
This week, the Realty Advisory Board on Labor Relations (RAB) and Local 32BJ, the union that represents many of the state’s building service workers, came to an agreement regarding the updated federal and state guidance on masking in their workplaces. According to a joint statement from the groups, that understanding is as follows:
Employers should immediately clarify their mask policy considering the updated CDC/NYS masking rules.
Employers who wish to continue a policy requiring masks on 100% of employees may continue to do so.
Employers who wish to permit vaccinated employees to take advantage of the new guidance for fully vaccinated individuals may do so, provided such employer complies with Paragraph 2, below.
No Employer shall prohibit vaccinated employees from wearing masks.
Employers who wish to permit fully vaccinated employees to be unmasked, according to new CDC/NYS guidance, may do so.
First, the employer must clarify their policy to permit it, as per Paragraph 1 above, and must designate a point-of-contact to correspond with employees and/or receive documentation from employees in connection with the updated policy.
If a fully vaccinated employee wishes to take advantage of the new masking exceptions, in connection with an employer policy permitting it, the employee must submit competent evidence of his or her full vaccination to the employer’s designated point-of-contact.
Competent evidence may include a copy (either photograph, PDF, or photocopy) of an individual’s CDC “Covid-19 Vaccination Record Card” or a note from an employee’s doctor or other medical professional that an individual has received all necessary doses of a vaccine. The employer must keep all vaccination records separate from the rest of the employees’ personnel files and make clear that no other medical information need or should be disclosed along with proof of vaccination.
The employer may disclose to the Union for representational purposes whether any individual is vaccinated, but shall not otherwise disclose whether an individual is vaccinated, provided however that the employer may disclose such information if it is de-identified and in the aggregate (e.g., 95% of our employees have been vaccinated), or if otherwise required by law.