CDC flip-flops on mask guidance for fully vaccinated individuals; what should U.S. employers do?

Hogan Lovells

Hogan Lovells

[co-author: Shannon Finnegan]

Citing concerns about potential spread of the COVID-19 “Delta variant” and the fact that even fully vaccinated individuals infected with the Delta variant can spread COVID-19 to others, on July 27, 2021, the Centers for Disease Control and Prevention (CDC) reinstated some safety measures that it lifted in May, including now recommending that fully vaccinated individuals wear masks in public indoor settings in areas of substantial or high transmission.

What changed in the CDC’s guidance

The CDC’s prior guidance, which we discussed here, provided that fully vaccinated individuals generally could resume normal activities without wearing a mask or physically distancing. (As a reminder, the CDC defines fully vaccinated as two weeks after receiving the second dose of a two-series vaccine, or two weeks after receiving a single dose vaccine.) The updated guidance is more restrictive in several respects. Specifically:

  • The CDC now recommends that fully vaccinated individuals continue to wear masks in public indoor settings in areas of substantial or high transmission. The CDC provides information about area transmission rates, updated daily, on its COVID-19 data tracker.
  • According to the CDC, wearing a mask is “most important” for individuals who are, or who live with someone who is, immunocompromised, at an increased risk of severe disease from COVID-19, or unvaccinated, and people in these situations may choose to wear masks regardless of area transmission level.
  • Whereas the prior guidance indicated that fully vaccinated individuals did not need to get tested after a known exposure to COVID-19 as long as they remained asymptomatic, the updated guidance states that fully vaccinated individuals should get tested 3-5 days after exposure, regardless of symptoms; wear masks for 14 days in public indoor settings, or until they receive a negative test result; and isolate for 10 days if the test result is positive. (The CDC does not, at this time, recommend isolation for fully vaccinated individuals absent a positive test.)
  • The updated guidance also removes prior references to fully vaccinated people not having to physically distance from others, but it does not address whether or when physical distance is recommended for fully vaccinated individuals.

What the new guidance means for employers

Although the CDC’s guidance does not have the force of law, many states and localities follow it. Some jurisdictions, such as Los Angeles County, had already reimposed mask mandates for fully vaccinated individuals before the CDC released its updated guidance; others may follow suit now or in the future, especially if area transmission rates increase. The Occupational Safety and Health Administration (OSHA) may also revisit its June 2021 guidance for employers in non-healthcare settings (discussed here), which was issued in response to the CDC’s prior guidance for fully vaccinated individuals. Employers will need to continue to keep abreast of the changing laws and guidance applicable to their workplaces.

Employers should also consider updating their return to work plans, policies, and procedures to reflect the CDC’s updated guidance and its finding that fully vaccinated individuals infected with the Delta variant can spread COVID-19 to others. In particular, employers that have loosened requirements for face masks and physical distancing for fully vaccinated individuals should consider whether to reinstate them. Employers may choose to incorporate the CDC’s guidance regarding at-risk household members in its policies, but should take care not to ask employees about the health status of household members or make employment decisions based on such information. Protocols regarding COVID-19 testing and isolation may also need to be revised. 

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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