Nine months ago, we discussed several issues that had been raised by COVID-19 face mask-related litigation. Soon after, COVID-19 infection rates spiked to unprecedented levels. But with the emergency use authorization of three COVID-19 vaccines in the United States, the state of the pandemic has drastically changed during the first half of 2021. Vaccines are now widely available for people 12 years of age and older, and infection rates have drastically declined across the United States as a result.
With months of real-world data showing the safety and efficacy of the Moderna, Pfizer, and Johnson & Johnson vaccines in hand, the CDC issued Interim Public Health Recommendations for Fully Vaccinated People (“CDC Interim Recommendations”) on May 13, 2021, which has changed the way people are thinking about masks. The CDC Interim Recommendations have also prompted a range of reactions from companies and employers and impacted mask-related disputes in the courts. This post provides an overview of these recent developments, which businesses and employers would be wise to keep in mind.
The CDC Interim Recommendations provide that fully vaccinated individuals are no longer required to wear masks and socially distance when with other fully vaccinated people, or quarantine and be tested following a known exposure to someone with COVID-19, except in certain situations. The CDC cautions, however, that federal, state, local, tribal, or territorial, laws, rules, and regulations, including local business and workplace guidance, may still require a person to wear a mask or practice social distancing.
Most states have adopted the CDC Interim Recommendations for business and public settings over the past month. For example, New York no longer requires vaccinated individuals to wear a mask when with other fully vaccinated people in most settings, though businesses are authorized to maintain policies requiring face coverings in their establishments. Consistent with the CDC Interim Recommendations, unvaccinated individuals are still required to wear masks in certain settings in New York, and the New York Department of Health strongly recommends masks be worn in indoor settings where individuals’ vaccination status is unknown.
Other states, like California, have also recently relaxed their mask guidelines. On June 15, 2021, California retired its color-coded tier system for reopening. On June 17, 2021, the CAL/OSHA Standards Board voted to adopt revised COVID-19 Prevention Emergency Temporary Standards, and Governor Newsom signed an executive order that allowed the revisions to immediately take effect. The revised standards provide, in part:
Businesses have reacted in different ways to the CDC’s Interim Recommendations. Some have announced that they will mirror the CDC’s guidance and remove any mask mandates for fully vaccinated customers and employees, unless state or local laws or regulations require otherwise. Others have lifted mask requirements for customers where permitted, but are continuing to require employees to wear masks regardless of their vaccination status. And some companies have decided to retain their face covering requirements for all customers and employees for now. Some of these decisions have been made at the company-wide level, while other businesses have left decisions regarding mask requirements to individual store locations. No matter which approach to mask wearing a company has in place at the moment, it would be wise to stay apprised of how mask-related litigation has progressed in recent months, as well.
In September 2020, we discussed two class action cases brought on behalf of store customers who alleged the mask policies of Nike stores in California and Giant Eagle supermarkets in Pennsylvania violated Title III of the ADA. One of those cases has settled while the other is still pending, but both have been impacted by the developments over the past eight months and overall recent easing of mask restrictions.
In Cali Bunn v. Nike, Inc., a hearing impaired plaintiff claimed Nike did not provide her with a reasonable accommodation because the salesperson wore an opaque face mask, which made it impossible for the plaintiff to speechread. In January 2021, the parties reached a settlement (which was approved on May 22, 2021), whereby Nike agreed to provide store employees located in California a sufficient number of masks with transparent windows over the mouth area and clean pens and paper to use during conversations with customers who are deaf or hard of hearing. Notably, the plaintiff in Bunn sought injunctive relief only, and the parties agreed that the injunction would last only as long as Nike requires employees to wear face coverings in California. As a result, with the CDC Interim Guidelines and California’s recent revisions to its mask guidance, it is possible the injunctive relief negotiated and agreed to in Bunn may be in effect for only a short period of time more.
In Pletcher v. Giant Eagle, Inc., plaintiffs who allegedly suffer from respiratory limitations, asthma, nervous system issues, and/or post-traumatic stress disorder filed a complaint against Giant Eagle challenging its policy that required customers wear face coverings inside its Pennsylvania grocery stores. The court denied one of the plaintiff’s motion for a preliminary injunction on October 23, 2020, holding that Giant Eagle’s policies were consistent with the applicable Pennsylvania Department of Health’s Order and recommendations. The Court further found that plaintiff’s disability discrimination claim was deficient because, inter alia, Giant Eagle’s policy permitted customers to wear full-face shields rather than masks, plaintiff failed to demonstrate he was unable to wear a full-face shield, and plaintiff had failed to meet his burden of showing that his requested accommodation—being allowed to shop without a mask—was reasonable or necessary. Nevertheless, the Court also denied Giant Eagle’s motion to dismiss in October 2020, and, thus, the case remains pending in the Western District of Pennsylvania.
It remains to be seen how Pletcher will play out in light of the drastic changes in the state of the pandemic in the United States over the past few months. The CDC’s Interim Recommendations and Pennsylvania lifting its mask requirement on June 28, 2021, may moot plaintiff’s claims seeking injunctive relief in the near future.
Some employees have challenged their employers’ COVID-19 related policies by claiming the companies have failed to take appropriate measures to ensure worker safety, including by failing to provide masks to employees or enforce social distancing. Recently, courts have shown a tendency to side with defendants in these actions.
For example, courts have dismissed some employee lawsuits based on the primary jurisdiction doctrine, deferring determinations regarding the adequacy of workplace safety to OSHA. In Rural Community. Workers All. v. Smithfield Foods, Inc., 459 F. Supp. 3d 1228 (W.D. Mo. 2020), a worker advocacy group and employee brought an action against a meat processing plant claiming that the owner and operator failed to adequately protect workers from COVID-19. The Western District of Missouri granted defendants’ motion to dismiss based on the primary jurisdiction doctrine, finding plaintiffs’ claims rose and fell based on the processing plant’s compliance with the CDC and OSHA issued Meat and Poultry Processing Workers and Employers – Interim Guidance and, therefore, OSHA was better positioned to make a determination due to its expertise and experience “enforcing” occupational safety and work standards. Id. at 1241. The Court further held that only deference to OSHA will ensure uniform national enforcement with OSHA’s interim guidance to meat and poultry workers. Id.
Some employees have brought public nuisance claims against employers alleging the employer failed to provide a safe workplace by, inter alia, failing to provide masks to workers or enforce mask policies. Some courts appear to disfavor these public nuisance claims and have dismissed them for failure to state a claim. See id. at 1244 (holding plaintiff failed to show that the operation of the plant violated the public’s right to health and safety); Sprewell v. Fed. Express Corp., No. 2:20-cv-11612 (C.D. Cal.) (Dkt. 27 at 3-4) (holding plaintiff failed to allege the risk of employees contracting COVID-19 in the workplace was any different in degree than the risk to the public in general).
It is also worth noting that 30 states have passed legislation that provides businesses with some form of protection from civil liability arising from a person’s exposure to COVID-19. These liability shield laws vary by state—applying to some industries or all businesses, providing different relief (e.g. bar to claims, rebuttable presumption, or limitations on damages), and establishing other requirements or exceptions to the law’s application (e.g. proof of actual harm)—but generally provide protection to businesses unless the plaintiff can prove gross negligence, willful misconduct, or failure to follow public health orders.
The CDC’s updated guidance has had an impact on not only state mask requirements, but also pending litigation. It is unclear whether the CDC Interim Recommendations and the associated responses from businesses will trigger new mask-related litigation. On the one hand, it is possible customers may bring new challenges in light of the CDC Interim Recommendations and as states begin to reopen and relax COVID-19 restrictions, but the current upward trend in vaccinations and downward trend in infection rates across the country may stymie the number of new public nuisance and labor law claims brought by employees against employers relating to employers’ mask and social distancing policies. Liability shield laws also impose high barriers of entry for potential plaintiffs seeking to assert claims arising from their exposure to COVID-19 and will likely deter customers and employees from asserting potential claims against businesses.
While the world is eager to return to normalcy, it is still important for employers to check federal, state, and local requirements regarding face coverings, social distancing, and vaccination status when developing COVID-19 related policies for their employees. Employers should be aware that there may be different rules and regulations governing face covering requirements for vaccinated and unvaccinated employees. Staying up to date on COVID-19-related litigation can also help businesses and employers navigate the ever-changing pandemic landscape as the United States continues to move back towards “normal.”
 The CDC considers people fully vaccinated two weeks after the second dose of the Pfizer or Moderna vaccines or the single dose Johnson & Johnson vaccine.
 On June 10, 2021, The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard that established new requirements for workers providing healthcare or health care support services only. OSHA released updated guidance that provided advisory recommendations for all other industries. https://www.osha.gov/news/newsreleases/national/06102021.
 Pursuant to CDC guidelines, masks are still required for large-scale indoor event venues, pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings. Id.
 For more information regarding California’s new COVID-19 workplace standards, please see https://www.mofo.com/resources/insights/210624-cal-osha-covid-19-workplace-restrictions.html?utm_source=publication&utm_medium=email
 CPDH requires masks, regardless of vaccination status, on public transit, indoors in K-12 schools, childcare, and other youth settings, healthcare settings, state and local correctional facilities and detention centers, homeless shelters, emergency shelters, and cooling centers. https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx.
 Case No. 20-cv-7403-YGR (N.D. Cal.).
 See id., Order Granting Plaintiff’s Unopposed Motion for Settlement Approval (Dkt. 19), at 10.
 Case No. CV 2:20-754 (W.D. Pa.).
 Id. at *4-5.