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 July 27, 2021, the Centers for Disease Control and Prevention (CDC) revised its COVID-19 guidance, recommending that even individuals who have been fully vaccinated against COVID-19 should resume wearing masks in public indoor settings in those areas of the U.S. that have substantial or high COVID-19 transmission rates. This announcement revises the CDC’s May 2021 guidance that fully vaccinated individuals could stop wearing masks and discontinue physical distancing in most settings.
The CDC notes that breakthrough COVID-19 infections “happen in only a small proportion of people who are fully vaccinated,” but that those infected “can spread the virus to others.” As such, the CDC now recommends that fully vaccinated individuals who have a known exposure to someone with suspected or confirmed COVID-19 obtain a COVID-19 test 3 to 5 days following the exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result, whichever is sooner. In addition, the CDC continues to recommend that fully vaccinated individuals “get tested if experiencing COVID-19 symptoms,” and “isolate if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms.”
Finally, the CDC now recommends universal indoor masking for all persons in K-12 schools, including teachers, staff, students and visitors, regardless of their vaccination status.
The CDC had been expected to issue new guidance given the significant increase in new U.S. COVID-19 cases and breakthrough cases over the past month, which has been driven by the more infectious Delta variant. Like previous CDC announcements, however, today’s guidance is primarily aimed at individuals rather than businesses. Employers will continue to face implementation and logistical challenges in applying this new guidance to workplaces, while still applying pre-existing public health guidance for unvaccinated individuals.
- What is “Substantial or High Transmission?” In order to better adapt to changing circumstances, the CDC has adopted a dynamic approach to this question. Rather than designating specific geographic areas of concern, it has created a county-level map that will update each day at 8 p.m. Eastern. Employers will need to consult this map to determine whether their workplaces fall into areas of substantial transmission (50 to 99.99 cases per 100,000 persons) or high transmission (100 or more cases per 100,000 persons) over the preceding 7-day period.
- Is Our Workplace a “Public Indoor Setting?” The revised guidance itself does not define “public indoor settings” where masks should be worn, although the CDC and the World Health Organization previously have distinguished public settings from private household settings. Also, in its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, OSHA explicitly references the (now-updated) CDC guidance in its recommendations for employers. Given the publicity surrounding Tuesday’s CDC announcement, businesses should anticipate that employees may raise questions about whether workplaces plan to follow the revised guidance.
- Who is Fully Vaccinated? Most U.S. employers focus on the vaccines that have received Emergency Use Authorization (EUA) status from the U.S. Food and Drug Administration. Specifically, an individual is considered 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. Employers that recruit candidates internationally, have significant expatriate populations, or anticipate cross-border travel may wish to consider whether to accept proof of full vaccination with any of the vaccines that have been emergency use listed by the World Health Organization, as the U.S. EUA vaccines are not available in many other countries.
- Can We Find Out Who is Fully Vaccinated? Popular belief notwithstanding, employers are allowed to ask employees their vaccination status, and this inquiry does not in any way implicate HIPAA, the Health Insurance Portability and Accountability Act. Indeed, certain states, including California and Washington, explicitly require employers to determine vaccination status in order to lift COVID-19 safety protocols for employees who are fully vaccinated. Before modifying any safety requirements, 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.
- What About Non-Employees? In workplaces where employees regularly interact with non-employees, employers 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 third parties. Even in these states, however, businesses have wide leeway to impose workplace safety rules for those actually performing services on their premises.
- Local Guidance Continues in Effect. Not waiting for the CDC, numerous localities have preserved or returned to more restrictive guidance in light of rising COVID-19 cases, and others are likely to follow suit. Businesses should continue to monitor applicable regulations and reopening guidance, including masking requirements and recommendations, in jurisdictions where they are located.
- Are Separate Safety Protocols Feasible? Most U.S. workforces are far from being fully vaccinated. Employers should expect to maintain appropriate 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. Employers that want to loosen guidance for vaccinated employees 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 given concerns about the Delta variant and breakthrough cases, some fully vaccinated workers will choose to continue wearing masks for their own comfort. Employers should permit this practice. As the CDC recognizes: “Fully vaccinated people might choose to mask regardless of the level of transmission, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease, or if someone in their household is unvaccinated. People who are at increased risk for severe disease include older adults and those who have certain medical conditions, such as diabetes, overweight or obesity, and heart conditions.”
So Now What?
Tuesday’s announcement reflects the CDC’s effort to respond to recent data relating to the Delta variant and a recognition that risk assessments are not static in a pandemic. Employers that do not simply want to mandate masks across the board face the prospect of hitting “refresh” every day to determine whether tomorrow will be a mask day. As has been the case at various times throughout the pandemic, the CDC is not providing one-size-fits-all answers.
Employers should understand that the CDC has set the triggering point for safety restrictions at a very low level of case transmission. Decisions by state or local authorities as to whether to formally re-impose requirements will depend, in part, on more tangible factors than transmission rate alone, including the actual impact on community health care systems and the way their employees work. Employers should monitor for updates in state and local guidance, reevaluate their exposure control plans, determine what changes may be needed to reduce the risk of workplace exposure to COVID-19, and establish appropriate rules for their onsite workforce. Employers also should evaluate community public health considerations, their employees’ actual vaccination status, and their own levels of risk tolerance in establishing a path forward.