Just over two weeks after it relaxed its protocols for fully-vaccinated individuals, the Centers for Disease Control and Prevention (CDC) has now issued revised guidance essentially permitting those individuals to resume their pre-pandemic lifestyle, subject to any applicable and differing state and local mandates. Consistent with prior iterations of this guidance, the CDC asserts that “You will still need to follow guidance at your workplace.” So what can employers do now? Well, we’ve now updated our last blog post on this topic (and then further updated to account for OSHA’s latest pronouncement).
Newest Version of the Rules. The CDC now says that fully vaccinated individuals (meaning at least two weeks after the second/only required shot for the vaccine in question) may:
- Resume activities that they did prior to the pandemic without wearing a mask or staying 6 feet apart from others (apparently whether vaccinated or not), except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
- Refrain from testing before or after domestic travel or self-quarantine afterwards.
- Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the U.S. Testing or documentation of recovery from COVID-19 before returning to the U.S. is still required, and is recommended 3-5 days after returning from travel.
- Refrain from quarantine or testing following a known exposure if asymptomatic.
- Refrain from routine screening testing if asymptomatic and feasible
Continuing Rules. In addition to following individual employer guidance, the CDC says that fully vaccinated individuals should continue to:
- Take precautions when traveling. This includes wearing a mask on public transportation and in transportation hubs such as bus stations, train stations, and airports. And when travelling internationally, comply with the pre-return testing requirement and consider post-return testing, as mentioned above.
- Quarantine and get tested if experiencing COVID-19 symptoms.
- Those with health conditions or weakened immune systems should continue taking precautions, such as masking indoors and outdoors, social distancing, avoiding crowds, and refraining from travel.
(NEW) What OSHA Says. On May 17, 2021, OSHA stated that, in light of CDC’s new guidance for the fully vaccinated, it will be updating its own guidance (which currently still recommends masks for everyone in the workplace, if possible, in accordance with old CDC guidance). But in the meantime. OSHA refers employers to the current CDC guidance.
What Changes Employers Could Make. With regard to that employer guidance, we offer some revised thoughts, but please remember that state and local jurisdictions may still impose restrictions beyond what the CDC is allowing. Thus, it is critically important to check whether and what those state/local mandates may be before taking any of the actions set forth below.
- Workspace generally: Most workplaces will have a mix of vaccinated and unvaccinated individuals. It appears that vaccinated employees need not wear masks or observe social distancing protocols (or even wash their hands!). However, the CDC still says that unvaccinated employees should continue to maintain all COVID-19 protocols generally, including masking and distancing. If all employees in a particular enclosed workspace are vaccinated, those employees need not wear masks or stay at least six feet apart – unless there is a state or local masking mandate that still applies to the workplace (or indoor spaces, more generally). Vaccinated vendors, clients or other visitors to the workplace also need not wear a mask, while unvaccinated ones should continue to do so.
- Small group meetings: Just as before, if all participants in a meeting have been vaccinated, they need not wear masks or stay at least 6 feet apart during the meeting. Although the CDC guidance permits vaccinated individuals to be within 6 feet of unmasked, unvaccinated ones, the guidance for unvaccinated individuals continues to emphasize the need for a mask and distancing, apparently even from vaccinated individuals. (Yes, this is confusing). The best practice would be to require unvaccinated employees to continue to wear a mask when meeting with their vaccinated, mask-free colleagues.
- Outdoor work: Based on the new guidance, fully vaccinated employees working outdoors need not wear masks or socially distance from other employees, regardless of how many people are around. Again, unvaccinated employees should continue to mask, socially distance (where possible) and avoid large groups.
- Lunchrooms: If fully vaccinated employees wish to eat together, they can be permitted to do so. Arguably, unvaccinated colleagues could join them, although, as noted above, the CDC guidance for those individuals is to continue to observe measures such as masking and social distancing.
- Business travel: Employers can allow fully-vaccinated employees to resume business travel, both domestic and international. Domestic travelers need not test before or after travel, while international travelers must be tested before returning to the U.S., with testing recommended 3-5 days following return. Both domestic and international travelers need not quarantine following travel. Be aware that there may be additional testing and quarantine requirements imposed by the travel destination or local/state mandates, however. Employers should continue to try to minimize any required travel for unvaccinated employees. Moreover, employers should be thoughtful in responding to employee concerns about required travel – particularly for older employees or those with underlying health conditions, even if they have been fully vaccinated.
- Exposure to COVID-19: The CDC states that if it’s been more than two weeks since the employee was fully vaccinated, they need not quarantine (for unvaccinated individuals, the quarantine period is at least 7 and up to 14 days). Exposed, vaccinated employees should still monitor for symptoms. And those in high-density or non-healthcare congregate settings (e.g. meat and poultry processing or manufacturing plants, correctional and detention facilities, or group homes) should still undergo appropriate testing through workplace screening programs.
- Symptomatic Employees and Those Testing Positive: Of course, if a vaccinated employee develops symptoms of COVID-19 following exposure, they should isolate in accordance with the CDC’s guidelines, seek a medical evaluation, and possibly be tested. Those testing positive should isolate. Because, remember, the vaccine is not 100% – meaning some vaccinated employees will still get COVID-19. Employees with symptoms or who have tested positive may be able to work remotely, or may need leave. If sick leave is available or mandated by state or local law – or FFCRA leave is available and allowed by the employer (through September 30, 2021) – they will be entitled to take such leave during the isolation period.
- Reasonable accommodations: Vaccinations do not eliminate the need to provide reasonable accommodations, if the employee has a disability. Thus, for example, employers should not be quick to assume that an employee with a condition that put them at higher risk of serious illness from COVID-19 no longer needs to telework following vaccination. Reasonable accommodations should always be considered on a case by case basis, and a disabled employee may still need to telework following vaccination, if the medical provider supports that requirement.
Factors to Consider Before Loosening Workplace Protocols. Despite OSHA’s May 17 pronouncement that employers should follow current CDC guidance for fully vaccinated individuals, it is important to note that OSHA is expected to issue – any day now – its COVID-19 Temporary Emergency Standard, which may or may not be consistent with the CDC’s general recommendations and our observations based solely on the CDC guidance, as set forth above. So further modifications may be expected shortly.
In the meantime, as discussed in an earlier blog post, What to Do About Workplace Masking in the “Open” States, employers may implement and maintain current COVID-19 protocols that exceed what the CDC is recommending or that OSHA may shortly mandate. The CDC had previously noted that there may be higher risk – and consequently employers may wish to implement more stringent safety measures – with the following: higher community transmission rates; settings with more unvaccinated people; indoor settings with poor ventilation; inability to maintain social distancing; and activities that including shouting, physical exertion or heavy breathing, and the inability to wear a mask, among other things. (This particular observation is no longer part of the CDC guidance, but actually continues to be a useful part of the analysis for an employer assessing infection risk in the workplace).
In addition, as we previously noted, employers should realize that there may be resistance to stricter protocols from some employees, managers, and visitors, and be prepared to address that. Clear and specific communication about what the protocols are and why they are required is helpful. And an employer can usually discipline employees for failing to comply with stricter employer-mandated protocols.