[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.
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:
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.