Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On May 13, 2021, the Centers for Disease Control and Prevention (CDC) announced that Americans who have been fully vaccinated against COVID-19 no longer need to wear a face covering or practice physically distancing in any setting. This announcement builds on the CDC’s April 27 guidance that fully vaccinated individuals could forgo face coverings and physical distancing in outdoor settings and resume other activities.
While this is welcome news for the steadily growing number of Americans who have received the COVID-19 vaccine, the CDC’s announcement poses some obvious implementation and logistical challenges for employers.
- Who Counts as Fully Vaccinated? An individual is fully vaccinated after they have received both doses of the Pfizer/BioNTech or Moderna vaccines, or one dose of the Johnson & Johnson/Janssen vaccine, and at least two weeks have passed since administration of the final dose. Individuals who have not completed this process should continue to observe social distancing and wear face coverings indoors.
- How Do We Find Out Who is Fully Vaccinated? Employers will feel increasing pressure to determine which of their employees are fully vaccinated in order to lift workplace restrictions, and many employees may readily volunteer this information. Before lifting any safety requirements, however, employers must make sure that they are collecting accurate and reliable information regarding who has been vaccinated, and should coordinate these efforts through Human Resources, environment, health, and safety (EHS) personnel or others experienced in the proper collection and storage of employee health information in accordance with the Americans with Disabilities Act, Occupational Safety and Health Act, and state laws. Allowing supervisors to collect information informally creates a risk of employee relations issues or EEO complaints, and increases the likelihood that the information collected is inaccurate. Further complicating information collection, numerous proposed bills have been introduced in state legislatures across the country prohibiting employers from requiring proof of vaccination status.
- What About Non-Employees? In workplaces where employees regularly interact with non-employees, employers will face different constraints when collecting vaccination information. Employers will need to reach out to staffing providers to determine whether contingent or temporary workers have been vaccinated, and should be mindful of state law limitations on the collection and disclosure of such information. Businesses also need to consider whether and how to obtain vaccine information for customers, clients, consultants and other regular workplace visitors. This effort will be complicated in those states that have barred “vaccine passports,” meaning that businesses may not require COVID-19 vaccination as a condition of entry for customers or third parties.
- Not So Fast: The CDC cautions that its announcement does not supersede “federal, state, local, tribal or territorial laws, rules, and regulations, including local business and workplace guidance.” While many jurisdictions will likely ease their COVID-19 safety protocols in response to the CDC’s announcement, this process will take time, and businesses should continue to monitor applicable regulations and guidance in jurisdictions where they are located. California, for example, has only recently adopted public health guidance eliminating quarantine requirements for fully vaccinated individuals who have had close contact with a COVID-19 case in the workplace. Meanwhile, California continues to explicitly require masking indoors in the workplace.
- Dual-Tracking: Finally, while authorized COVID-19 vaccines are now widely available in the United States, most workforces are far from being fully vaccinated. Employers should expect to maintain separate COVID-19 safety protocols for unvaccinated or only partially vaccinated workers, as well as for others present in the workplace whose vaccination status cannot easily be determined. Additionally, employers will need to develop a reliable and practical way of distinguishing the two groups without stigmatizing individuals who are unable to obtain the vaccine for legally protected reasons, such as disability and religious bases. Employers should also expect that after many months of restrictions, even some fully vaccinated workers will choose to continue wearing masks for their own comfort.