On Tuesday, July 27, 2021—in response to the latest developments relating to the spread of the B.1.617.2 (Delta) variant of the coronavirus—the Centers for Disease Control and Prevention (CDC) issued Interim Public Health Recommendations for Fully Vaccinated People, addressing such issues as masking and responding to COVID-19 exposure. The new recommendations in this surprise update—particularly reinstating indoor masking for fully vaccinated individuals, but only in certain geographic areas based on changing new case rates—places employers in the difficult position of: 1) understanding what their obligations are; and 2) balancing the new recommendations with both the expectations of employees and the desire to maintain a safe and productive workplace.
Prior to Tuesday’s changes, on May 13, 2021, the CDC had advised that fully-vaccinated individuals could safely participate in most activities, including public gatherings indoors, without the use of face coverings or masks. Based on that guidance, many employers revised their return to work health and safety protocols to reflect a mask-free standard for fully vaccinated employees.
In its latest guidance, however, the CDC partially reverses its position on masking and now recommends that fully vaccinated individuals wear a mask in “public indoor settings” if they are in an area of “substantial” or “high” transmission.  Important to note for employers, the guidance does not define what constitutes a “public indoor setting,” leaving it unclear whether it applies to employment settings such as private office spaces or manufacturing facilities, which are not generally open to the public. Furthering the lack of clarity, the CDC frames the guidance as “recommendations” for vaccinated people, rather than explicit directives that local governments, businesses, or employers should follow.
The masking recommendations have commanded almost all of the spotlight; but in addition, the CDC’s recommended protocols for individuals who are exposed to, experiencing symptoms of, or test positive for COVID-19 also potentially impact employers’ current practices—regardless of the level of transmission in the locale. According to the CDC:
In the wake of the CDC’s updated recommendations relating to masking, isolation, and testing, employers should revisit their current COVID-19 polices and protocols and evaluate whether updates or revisions are required.
Right now—as federal agency guidance and state/local law continues to shift and rapidly develop—employers have a few options in terms of next steps. Depending on various factors, including existing employee policies and workplace locations, employers should immediately undertake one of the following steps:
Employers should also revisit their health and safety policies to ensure compliance with the CDC’s revised recommended protocols for fully vaccinated persons who are exposed to, experiencing symptoms of, or test positive for COVID-19. Additionally, as employers consider best next steps with respect to their masking policies, they should likewise revisit their vaccination requirements. More specifically, in light of the new CDC recommendations, employers may wish to contemplate a mandatory vaccination program, if they have not already implemented one.
One of the “Key Points” underpinning the CDC’s newest recommendations for fully vaccinated people is that—though infections “happen in only a small proportion of people who are fully vaccinated,” even with the Delta variant—fully vaccinated persons can reduce the risk of “becoming infected…and potentially spreading it to others” by wearing masks in public indoor settings. In short, this latest CDC development appears to be a reaction to the severity of the Delta variant, and a pronounced effort to prevent its spread to persons who are not fully vaccinated—thereby avoiding catastrophic consequences.
In response to these new recommendations, a variety of private sector employers (e.g., many hospitals and health systems, educational institutions, and The Washington Post) have already decided to require proof of vaccination as a condition of continued employment. Other employers (e.g., Google, Facebook, and Morgan Stanley) have opted to require employees who report to the workplace to be fully vaccinated before doing so. Still, other employers are initially implementing vaccination requirements for new hires, with a roll-out to the current workforce on the horizon. Today, the Biden Administration announced that all civilian federal employees and federal contractors must be vaccinated or subjected to alternative measures (e.g., weekly testing, masking social distancing, etc.) as a condition of continued employment.
At this point, mandatory vaccination arrangements—which have become more tenable in recent months with wide scale vaccine availability—are likely the best way to protect the workforce and maintain continuous operations. Mandatory vaccination programs will likely eliminate the need for masking in the future, and therefore minimize the discord surrounding mask-wearing and help all employers to escape flip-flopping masking guidance. Additionally, a nearly 100% employee vaccination rate would more than likely undermine any potential claim that an employer failed to provide a safe work environment or engaged in any other conduct violative of Occupational Safety and Health Administration (OSHA) standards.
As Quarles & Brady has previously advised, employers may legally mandate employee vaccinations, so long as there is no state or local law that prohibits such a program at the time it is implemented, and so long as employers provide an opportunity for employees who are unable to receive any of the available vaccines due to medical or religious prohibitions to request consideration of an accommodation. This is true even as vaccines await full approval by the Food and Drug Administration (FDA)—as confirmed by the United States Department of Justice in a recent Memorandum Opinion.
Based on these trends in the current COVID climate, employers should both revisit their masking and health and safety policies, and begin or continue consideration of implementing a mandatory vaccination program in the near future.
 In addition to the inherently changeable nature of the data used to determine the level of transmission, the metrics used in making the calculation varies (number of new cases per 100,000 population “or” test positivity rate over 8%). Notably, data collected by John’s Hopkins University, which also tracks new daily COVID-19 cases per 100,000 people, identifies far fewer counties as “areas of substantial or high transmission,” complicating employers’ analysis of whether the CDC’s recommendations apply to the localities of their workplaces.