On May 13, 2021, the U.S. Centers for Disease Control and Prevention (the “CDC”) issued new guidance lifting mask restrictions for fully vaccinated individuals. The CDC’s guidance marked a drastic change in policy—from being at the forefront of recommending widespread mask use and social distancing to permitting vaccinated people to be maskless both indoors and outdoors. Under the new guidance, people who are fully vaccinated may stop wearing masks or maintaining social distance in most outdoor and indoor settings.
The CDC’s summary of changes states that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” Additionally, in most cases, fully vaccinated people can refrain from testing following a known exposure. On May 17, 2021, the Occupational Safety and Health Administration (“OSHA”) also advised employers to follow new CDC mask guidance for fully vaccinated employees.
States have responded to the CDC guidance in different ways. California has announced that its mask guidelines will remain in place until June 15, 2021, and it anticipates following the CDC guidance after that point. New Jersey is continuing its indoor mask mandate, including for vaccinated residents. Governor Cuomo announced that New York would follow CDC guidance and lift mandates on masks and social distancing for vaccinated people on May 19, 2021. Governor Pritzker similarly announced that Illinois would follow CDC guidance and lift the mask requirement for fully vaccinated people. Twenty-nine states, including Texas, Florida, and Arizona already had no mask mandate in place before the CDC guidance was issued.
The CDC’s drastic change in policy, and the lag in state and local guidelines has set up a difficult situation for restaurant owners, who have already been struggling with an unwanted role as a public health gatekeeper for their customers, amidst a nationwide staffing shortage.
Some large national chains have already released statements that masks are no longer a requirement for fully vaccinated customers. For example, Chipotle issued a policy statement that “fully-vaccinated guests do not need to wear a mask inside of Chipotle restaurants, except where required by local regulations.”
Restaurant operators have the right to set their own mask policies for customers, as long as they are consistent with local, state, and federal guidance. However, enforcement is extremely tricky to navigate. The new CDC guidance and revised state guidance applies only to vaccinated individuals. CDC guidance for unvaccinated people continues to recommend requiring masks for customers when not eating or drinking, and for employees at all times. Restaurants serve both vaccinated and unvaccinated people, and thus have a
Restaurants have no easy and clear-cut way of ensuring that their customers are vaccinated before every food order or seating. Concert venues and sporting events in many states have included requirements that event attendees show proof of vaccine before attending. However, some states, including Florida, have banned so-called “vaccine passports,” and many local jurisdictions have voiced oppositions to requiring proof of vaccine status. Additionally, because of restaurant operations and diner turnover, using the pre-clearance system at point of sale, as large-scale events have is not a viable option for restaurants.
The change in federal mask guidance is likely to create widespread confusion, so internal consistency in messaging the restaurant’s mask policy to both customers and employees is critical. Additionally, restaurants must follow the public health guidance from their county health officer in order to avoid fines and meet inspection guidelines.