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The Centers for Disease Control and Prevention (CDC) announced Friday that the agency has adopted new metrics for determining whether to recommend face coverings indoors – a shift that will result in many Americans no longer being advised to wear masks in indoor public settings. These new guidelines come at a time when most states are eliminating masking requirements. The CDC’s updated guidelines represent a shift away from looking primarily at the number of COVID-19 cases in a given area to taking into account local hospitalizations, as well as hospital capacity. The updated metrics create an opportunity for businesses and employers to revisit their own approaches to masking policies, but does not require any changes.

Significantly, the CDC still recommends that everyone over the age of 5 get vaccinated and also get a booster after 6 months. Additionally, the new guidelines except individuals who are immunocompromised or have an underlying health condition.

CDC’s New Guidance

The CDC’s previous guidelines recommended that even fully vaccinated individuals residing in communities of substantial or “high” transmission wear a mask in indoor public settings. Given that the standards solely examined the positivity rate of COVID-19 cases in a community, roughly 95% of counties in the United States met the definition of substantial or high transmission.

The metrics used to determine whether to recommend masks will now take a more holistic view. While the number of COVID-19 cases in a community will still but considered in the determination, hospitalizations and local hospital capacity will also be taken into account.

  • The CDC adopted “COVID-19 Community Levels” of “Low,” “Medium,” and “High” to help communities decide what recommendations and requirements to put in place. The CDC has now provided a “COVID-19 County” tool to find more specifically the community level in a particular county and the prevention steps recommended for that countyUnder the updated guidance, only those living in areas of “High” COVID-19 community levels are encouraged to continuing wearing a mask indoors in public, regardless of vaccination status. As of the CDC’s announcement, only 37% of counties in the U.S. fall into this category.
  • In areas designated “Medium,” the CDC recommends that individuals who are immunocompromised or at high risk for severe illness should talk to their healthcare provider about whether to wear a mask or not. But all others in these areas – amounting to nearly 40% of U.S. counties – are no longer advised to wear a mask indoors in public.
  • In areas designated “Low,” the CDC leaves the decision of whether to wear a mask or not up to each person individually, based on personal preference and personal level of risk. Only 23% of U.S. counties are currently classified at the low-risk level.

Employers and Businesses

The CDC’s new guidance provides important considerations for employers who have been considering changes to their masking policies. Even though CDC guidance is not directly binding on employers, it is critically important. That’s because while OSHA has not yet expressly adopted the most recent CDC guidance, OSHA’s guidance historically relies upon the CDC guidance.

Employers should review their local and state masking requirements and continue to comply with those requirements. For employers in areas where a mask mandate is no longer in place, they should review the CDC’s latest guidance and utilize the COVID-19 County Check tool to make an informed decision regarding their mask policy.

Employers who lift their mask mandate should make sure that employees who continue to voluntarily wear a mask do not face illegal mistreatment at the hands of supervisors or coworkers. Make sure your employees know that retaliation, discrimination, and harassment will not be tolerated, and include this prohibition in written policies distributed to all workers.

The rules and government guidelines regarding the COVID-19 situation are rapidly changing and developing. Schwartz Rollins LLC is monitoring these changes and will continue to provide updates as we deem appropriate. This information is not intend to be, and should not be construed as, legal advice for any particular fact situation. Please contact one of our attorneys at Schwartz Rollins, or our legal assistant, Vicki Perry at 404.844.4130.

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