On July 27, 2021, the U.S. Centers for Disease Control and Prevention (CDC) reversed itself on the issue of mask wearing for vaccinated individuals and issued a new guidance recommending masks for all. As the new more dangerous and more transmissible Delta variant of the COVID-19 virus rapidly spreads worldwide, the agency now recommends that all individuals, including vaccinated individuals, wear masks in indoor public places that are located in “Substantial” and “High” transmission areas.
The CDC continually collects data to determine the rate of transmission in counties nationwide and uses it to label counties as having low, moderate, substantial or high transmission rates based on the number of reported infections in the county. According to the CDC, counties with “high” transmission rates have 100 cases per 100,000 individuals of reported COVID-19 cases over a seven-day period, while counties with “substantial” transmission have 50 to 100 reported COVID-19 cases over a seven-day period. The CDC has a COVID-19 data tracker on its website showing the transmission rates by state and county. The tracker can be found using the following link: https://covid.cdc.gov/covid-data-tracker/#county-view. The City of Atlanta and most of Georgia is classified as a high or substantial transmission area.
During a recent public news conference, the CDC Director stressed that the vast majority of the transmission of COVID-19 is through unvaccinated individuals who have a higher risk of severe disease, hospitalization or death from the virus. However, vaccinated individuals may also have breakthrough infections that spread the virus to unvaccinated individuals. Thus, the CDC believes the science supports its new guidance recommending all individuals wear masks in indoor public places. Notably, the pool of unvaccinated individuals includes children under 12, those with immune deficiencies, certain disabled individuals, as well as individuals who decline to take the vaccine for personal reasons.
A day after the CDC issued its new mask guidance, Atlanta Mayor Keisha Lance Bottoms issued an Executive Order in accordance with O.C.G.A. Section 38-3-28 and Section 2-181(b) of the City of Atlanta Code of Ordinances requiring individuals within the jurisdiction of the City of Atlanta to wear a mask or cloth mask covering while in indoor public places.
Citing health and safety concerns, many companies including Facebook and Google, are implementing mandatory vaccination policies in the workplace. Moreover, this week California and New York City both announced that they would require all unvaccinated government employees to be tested weekly for these entities from implemented COVID-19 vaccination mandates. In both cases, federal judges dismissed the lawsuits by explaining that no existing federal or state law prohibited vaccine mandates for public or private entities.
Moreover, a recently published U.S. Department of Justice (“DOJ”) memo, originally dated July 6, 2021, further supports the CDC’s push for vaccinations by stating conclusively that no law, including the Food, Drug, and Cosmetic Act (“FDCA”), prohibits public or private entities from mandating vaccination requirements for a vaccine that is subject to an emergency use authorization. Thus, the federal government and the courts are now making it clear that public and private entities can enforce vaccine mandates without the risk of legal exposure and liability.
The new guidance from the CDC and DOJ provides important information that employers should consider to protect the health and safety of its employees. Even though the CDC guidance is not directly binding on employers, it is important to take the guidance into consideration when crafting policies and procedures regarding COVID-19. Companies should check the CDC COVID-19 data tracker, as well as the state and local laws, to determine the rate of transmission in their location and adjust masking policies as necessary. Companies should also keep the lines of communication open with their employees to adequately address employee questions, worries and misconceptions about the vaccines and existing company policies regarding COVID-19.
Schwartz Rollins will continue to monitor the rules and government guidance regarding the COVID-19 pandemic. Our firm has an inventory of sample policies and public accommodations requests that can be tailored to your business, including a Mandatory Vaccination Policy, Non-mandatory Vaccination Policy, Accommodation Procedure for COVID-19 Vaccine, and requests for exemption based on medical or religious reasons. If you need our assistance in crafting a legally complaint policy, we are here to assist you. Please contact one of our attorneys at Schwartz Rollins, or our legal assistant, Vicki Perry at 404.844.4130.