The coverup continues

New Jersey is one of just a few states maintaining an indoor mask requirement despite recent guidance from the Centers for Disease Control that fully vaccinated people, in most circumstances, do not have to wear face coverings indoors. While continuing the rule caused confusion among many business owners and workers, some say it’s a simpler approach than the alternative – requiring masks only on unvaccinated residents.

In New York and some other states, the mask mandate has been replaced with a requirement that private businesses, venues and establishments determine who is vaccinated and should still wear a mask. Doing so could entail using a privately developed mobile phone app or the CDC-issued vaccine card, even though Republican-led states such as Florida have banned businesses from employing this so-called “vaccine passport.”

Private establishments have the right to enforce their own individual mask mandate, according to New York Gov. Andrew Cuomo. Connecticut and Pennsylvania are following suit, saying masks are required indoors just for anyone not vaccinated. Businesses can implement their own mask mandates.

“We are not out of the woods yet,” Gov. Phil Murphy said during a regular COVID-19 briefing on May 17, citing the current vaccination pace and the large number of New Jerseyans still not inoculated. “We are going to be able to take off our masks indoors in the not-so-distant future as more and more people complete their vaccination courses,” the governor added. “We just can’t yet because we need to know unequivocally that doing so will not lead to a backslide in our progress.”

On May 19, the state went ahead with some of its most wide-ranging reopening steps to date: the expansion of indoor gathering limits and the replacement of capacity restrictions with a simple 6-foot social distancing requirement for businesses like retailers, restaurants, gyms and salons.

Stephanie Silvera, an infectious disease expert and Montclair State University public health professor, cautioned that a “patchwork” of mask mandates across neighboring states could carry its own risks. The differing rules coupled with fluctuating vaccination rates in different parts of the state could mean localized outbreaks in the near future.

Businesses are left with little in the way of being able to verify who’s gotten the vaccine, versus who simply does not want to wear the mask. “Either all wear masks, or all do not wear masks,” said Sal Risalvato, who heads the New Jersey Gasoline, C-Store and Automotive Association. The trade group represents gas stations, convenience stores and automotive repair establishments across the state. “Since it is likely that patrons will probably remove masks and claim they are vaccinated, it probably would be best at this point to simply eliminate the mask requirement altogether,” he said.

Murphy has repeated the argument that workers cannot be put in the position of having to verify vaccine statuses and enforce mask mandates among the unvaccinated. “The majority of New Jerseyans are still unvaccinated, and we’re not checking anyone’s vaccine status at the door when you go to the supermarket or to a hardware store, for instance,” the governor said on May 17. “I don’t know how we can expect workers to tell who is vaccinated from who isn’t, and it is unfair to put the burden on business owners and frontline employees to police every patron.”

As of May 20, 3.7 million people who live, work or study in the state have been fully vaccinated out of a population of more than 9 million. “It makes it very difficult for those businesses, and particularly a lot of workers and employees who are now tasked with potentially telling people they have to prove that they’re vaccinated to keep their mask off. What kind of burden does that put on them?” Silvera said.

Worker’s rights groups and labor unions largely agreed. The United Food and Commercial Workers Union, which represents 1.3 million food and retail workers – 52,000 in New Jersey – criticized the decision by the Biden administration to loosen the mask guidelines and said mask requirements were vital to keep in place while the nation rushes shots into millions of more arms in pursuit of “herd immunity.”

The White House has taken months to issue emergency workplace safety requirements surrounding COVID-19, instead relying on voluntary guidelines issued by the federal Occupational Safety and Health Administration. “[T]his leaves workers and employers confused and also we still have the absence of any type of OSHA standard in place,” said Debra Coyle McFadden, executive director of the New Jersey Work Environment Council, a coalition of roughly 70 labor rights and other social justice groups. “If there was an OSHA standard, maybe that would give some more clarity.”

She added: “You’re getting more people into a space – retail, office, school – and you don’t have good ventilation, some people are vaccinated, some people aren’t vaccinated, it’s not a good recipe.”

Employers could collect data on employee vaccinations or they could collect and store answers from workers and customers on whether they got the vaccine, suggested Philip Bauknight, a partner at the law firm Fisher Phillips, who handles employer, OSHA and labor issues. But doing so increases the risk of legal liability for employers if they don’t protect the data and worker’s privacy. And there’s the issue that some employees and patrons might just lie about the vaccination status.

“You can require masks stay on in the workplace, that’s probably the lowest-risk option for employers,” he said. But businesses that do not keep the workplace free of known COVID-related hazards or run afoul of an employee’s religious right to refuse the vaccine could face legal repercussions.

A Republican-backed measure introduced last year, Assembly Bill 4189, would provide legal immunity to businesses from claims that workers and patrons contracted COVID-19 in a particular place of business. The proposal has not moved in either house of the Legislature. “We’ve been pushing from day one for liability protection. There is the possibility that people can say ‘I got COVID in your place of business or in your office,’” said Tom Bracken, president of the New Jersey Chamber of Commerce.

Dana Lancellotti, who heads the New Jersey Restaurant & Hospitality Association, said many restaurant employees have been put into “hostile situations” when asking patrons to wear masks, both before and after the latest CDC guidance. She said Murphy’s decision to simply keep the mask mandate in place “actually alleviated the problem.”

Lancellotti argued that restaurant owners will essentially have to rely on the “honesty of people” – that those who’ve been vaccinated would not wear masks while those who are not vaccinated will wear them. But even that, she said, could create problems and she hopes the governor will lift the mask mandate. “You’re going to always have people who haven’t been vaccinated. There’s really no way we can get to 100%,” she said. “I think people have a choice. If they feel unsafe, they don’t go into a restaurant and they eat outside.”

Bob Cooper, president of Chef’s International, which owns a dozen restaurants near the Jersey Shore, said he would hope the mask mandate would be lifted soon. He plans to rescind mask requirements once the governor lifts the statewide mandate. “We’re constantly having to manage people that don’t want to wear their masks, and people are tired of being told what to do,” he said in an interview. “We want our customers to come in and enjoy their experience.”

Anthony Kanterakis, who owns Local Greek in Princeton, said he anticipates some patrons might be uncomfortable returning to the brick-and-mortar site and entering without a mask. “It’s going to be a little tricky.”

But Christine Modica, head of the NJ Salon and Spa Alliance, and owner of Stag House Salon in Bergen County, said she’ll likely keep mask mandates in place except for beard trims, face shaves and face waxes. “It goes back to how we’re going to approach including this in our regulations, because if it’s not in writing, it kind of leaves us wide open for liability,” she said in an interview.

“We keep getting compared to restaurants, we should be getting compared to doctor’s offices. Restaurants don’t spend an extended amount of time with their patrons, but we did. We’re a recipe for infection. You’re talking about high infection rates, working in close proximity to our guests.”

Major retail chains like Target, Costco, Home Depot and CVS are dropping the mask requirements. Planet Fitness said in a statement that it would drop the mask requirement for its customers in New Jersey should Murphy life the state mandate.