Employers, Vaccines and the Recent CDC Guidelines

On May 13th the Centers for Disease Control and Prevention (CDC) announced that fully vaccinated people no longer need to wear a mask or physically distance in any non-healthcare public setting. This announcement was a welcome relief for all Americans and a hopeful sign that we have turned a significant corner with the COVID-19 pandemic. However, the guidance did not overrule federal law, workplace guidance, local business restrictions, or state, local, or other similar regulations. Importantly, the CDC’s announcement offered no specific guidance for employers. Thus, many workplaces may feel unsure about how to proceed. The good news is that the new rules seem to offer a path forward for those employers that want to proceed to a mask-less workplace – but such a path involves risks to consider and hurdles to overcome. Employers must still consider carefully how to proceed with their vaccination policies and with relaxing pandemic protocols.

The CDC’s Announcement
In a nutshell, the May 13 announcement by the CDC indicates that fully vaccinated people can now resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. To be clear, the CDC’s announcement states that some business settings may choose to continue to require masks and social distancing. Those in healthcare settings, however, have no choice: they need to continue to follow previous guidance regarding masks and social distancing regardless of vaccination status.

Further, fully vaccinated people can refrain from being tested or quarantining following a known exposure to a COVID-19-positive person (assuming the vaccinated person remains asymptomatic) and can be excluded from routine screening tests. Finally, they can resume domestic travel without testing or quarantine periods, and can travel internationally without any U.S.-based requirements before or after their trip.

According to the CDC, a worker is considered fully vaccinated two weeks after they have received the second dose in a two-dose series (Pfizer-BioNTech or Moderna) or two weeks after they have received a single-dose vaccine (Johnson and Johnson/Janssen). Also, there is currently no time limit on “fully vaccinated” status (although this may eventually change if research determines that booster shots are necessary).

Employer Considerations
For employers considering relaxing or eliminating your mask mandates and social distancing protocols for those who are fully vaccinated, there are at least seven considerations to take into account before proceeding:
Understand Your State and Local Regulations. Before you even think of ditching masks and six-foot spacing rules, you need to assess whether the state or local government in which you operate maintains any sort of mandate. The CDC guidance is just that – guidance. It explicitly states that it does not override rules instituted and enforced by local governments (usually by executive order signed by the governor). While many state and local health authorities immediately followed the CDC’s lead and began relaxing their own standards, you need to operate under their compliance purview until things change in your area.

Understand the Risk You Face From OSHA. The CDC sets standards for the American public to follow. The standards do not regulate workplace safety requirements and the CDC cannot find you in violation of safety rules and issue citations – but OSHA can. So while it is heartening to see the CDC take this momentous step, savvy employers are waiting for OSHA to follow its lead before they fully celebrate. OSHA has not changed its guidance on mask usage and social distancing since January 29 and has not yet reacted, formally or otherwise, to the CDC’s pronouncement.

Understand Your State OSHA Plan Requirements. In those states that maintain their own OSHA equivalent, you need to carefully review and consider any stricter standards set and maintained to determine whether you can proceed. Again, these state OSHA agencies could follow the CDC’s lead, but you need to assess the full lay of the land before changing your policies.

If You Mandate the Vaccine, Understand the (Slight) Risk of a Lawsuit. Employers that require vaccines for their workforces seem to stand on solid legal footing (so long as they also offer accommodations as necessary and don’t violate any new state laws that ban mandatory vaccinations) – but that hasn’t stopped the lawsuits from coming. Fueled by a bit of uncertainty caused by the current Emergency Use Authorization status of the vaccines, several employees across the country have filed lawsuits or threatened litigation against businesses requiring the vaccine for their workforce.

Tracking Vaccine Status Raises Privacy and Other Concerns. To provide mask and social-distancing relief to your fully vaccinated workers, you need to figure out which of them are actually fully vaccinated. It’s probably not the best policy to simply go on the honor system, so some level of certification will be necessary. What do you and your managers need to know about asking your employees about their vaccine status?

• While it is permissible to ask for vaccine documentation, you should affirmatively inform employees that they do not need to provide any additional medical or family history information.
• You should treat the documentation you receive as a confidential medical record.
• You may want to avoid retaining copies of any actual vaccine card, as that could trigger safety record-keeping obligations that you’d rather avoid. Simply create a confidential spreadsheet noting employee name, type of shot received, and date of the last dose.
• Refrain from asking follow-up questions – such as an employee’s reasons for not being vaccinated – that could trigger Americans with Disabilities Act (ADA) or Genetic Information Nondiscrimination Act (GINA) obligations.
• Don’t ask how your employees fared after their vaccine (especially the dreaded second dose). As harmless as it might seem, some questions could reveal disability status that you would rather not know.
• Offer Religious and Medical Accommodations. Your workers may be entitled to accommodations preventing them from receiving the vaccine, and therefore may remain subject to mask-wearing and social-distancing protocols for some time regardless of the CDC guidance. You obviously remain obligated to exclude them from any vaccine mandate and should take them into account when instituting any sort of company-wide policies or practices that involve a relaxation of COVID-19 rules.
• Protect Masked Workers from Mistreatment. Finally, for those workers who are excluded from vaccine mandates for legitimate medical or religious reasons, or for those who continue wearing masks because they choose not to get vaccinated (in non-mandated work environments), you need to make sure they do not face illegal mistreatment at the hands of supervisors or coworkers. OSHA continues to state that unvaccinated employees should not be treated differently than vaccinated employees. Make sure your workers know that retaliation, discrimination, and harassment will not be tolerated, and include this prohibition in written policies distributed to all workers.

Guests
While the CDC’s announcement included an accompanying chart indicating that many day-to-day activities are considered “safest” – including dining at an indoor restaurant, visiting a hair salon, shopping at an uncrowded retail store, seeing a movie at a theater, and more – the chart is designed with the vaccinated visitor in mind and not for the business actually hosting those guests. The key question left unanswered: how can a business determine whether its guests are fully vaccinated and cleared for a mask-less experience?

There is no easy answer at this time. Asking your guests for information about their vaccine status or proof of vaccinations is a risky proposition fraught with legal peril, which can vary by jurisdiction. You should coordinate with your legal counsel if you want to pursue such a course of action, but there are critical discrimination and privacy concerns to overcome. Vaccine passports are a topic much discussed recently; be aware that state laws have already begun to spring up prohibiting such passports in various areas.

What’s Next?
For those employers that want to chart the most conservative course and maintain the status quo, there remains virtually no legal risk at this time. You could choose to sit and wait for more clarity to emerge from the EEOC, OSHA, and state and local authorities before implementing any changes. The CDC announcement expressly states that employers and business can continue to maintain a mask mandate and social distancing policy. Of course, as things progress and some of your competitors begin bearing the risk and eliminating their mask and social-distancing policies, you may end up losing some of your workers who would rather work in a loosened environment. While you may not want to be first to adjust to the CDC’s new guidance, you don’t want to be the last.