How should employers respond to new CDC guidance stating that fully vaccinated individuals can resume activities without masks or social distancing?

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[co-author: Shannon Finnegan]*

On May 13, 2021, the CDC updated its guidance for fully vaccinated individuals (Vaccination Guidance), stating that fully vaccinated people (fully vaccinated means two weeks after receiving a second dose of the Moderna or Pfizer vaccines or two weeks after a first dose of the Johnson & Johnson vaccine) can:

  • Resume indoor and outdoor 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
  • Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
  • Refrain from COVID-19 testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States
  • Refrain from COVID-19 testing or quarantine following an exposure to a COVID-19 positive individual, if the fully-vaccinated individual is asymptomatic, with some exceptions for specific settings
  • Refrain from routine screening testing for COVID-19, if feasible

This significant development raises the question: what does this mean for the workplace? The CDC’s Vaccination Guidance does not green-light immediate relaxation of safety requirements in the workplace, however, employers should watch closely for new guidance out of the CDC, OSHA, and states and localities to see whether workplace-specific guidance and requirements changes. (As a reminder, employers are required to follow the state and local requirements that apply to them, regardless of the CDC’s guidance. For example, several jurisdictions continue to impose capacity limits on the workplace, and many jurisdictions have imposed safety requirements through regulation, executive order, or otherwise, including requirements pertaining to masks and social distancing. That said, state and local requirements are heavily influenced by CDC guidance and sometimes adopt it by reference.)

Although the CDC and OSHA have not yet updated their workplace-specific guidance, the CDC’s Vaccination Guidance suggests that workplace-specific updates are likely to follow soon. OSHA’s prior guidance stated that vaccinated individuals must still wear face coverings and distance from others because, according to the CDC, it was not known how vaccination affects transmissibility. The recent CDC Vaccination Guidance states, however, that “a growing body of evidence suggests that fully vaccinated people are less likely to . . . transmit SARS-CoV-2 to others.” Given that the CDC has changed its view of transmissibility, OSHA may too decide to change its view.

How the CDC, OSHA, and state/local guidance will change is uncertain at this time but it seems likely that requirements such as masks, social distancing, screening and testing, quarantine, and travel restrictions may relax for fully-vaccinated individuals.

While this news is a welcome sign for employers seeking to return to the office, employers will need to navigate a host of legal issues in implementing relaxed safety requirements for fully vaccinated individuals, if these relaxations become available for employers in their respective jurisdictions. Employers should consider, for example:

  • Should the employer implement a mandatory vaccination policy and, if so, what are the benefits and drawback of doing so?
  • If an employer mandates vaccinations, how should an employer handle requests for accommodation?
  • Will unvaccinated individuals in the office have to comply with different safety requirements in the office and if so, how can these differential requirements be implemented in a lawful way that respects employee confidentiality and avoids disruption? (It is possible that the U.S. Equal Employment Opportunity Commission (EEOC) will weigh in with guidance on this point.)
  • How should an employer handle a request from a vaccinated employee not to work with unvaccinated employees?

 

* Law Clerk

[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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