Although COVID-19 is still very much present, we see improvement in the COVID-19 numbers, and the Centers for Disease Control and Prevention (CDC) has now significantly eased their mask recommendations– although not entirely. Employers may wish to review their workplace masking requirements and other COVID-19 protocols in light of the new guidance, as well as the diminishing restrictions at the state and local level.
As a general matter, the CDC’s guidance is not mandatory; it consists of recommendations. However, it is worth noting that OSHA’s current COVID-19 guidance references the prior CDC recommendations, and will undoubtedly be updated to conform to the new recommendations. And compliance with the CDC’s recommendations clearly establishes that employers are also meeting their obligation under the General Duty clause of the Occupational Safety and Health Act to provide a safe workplace.
The Prior Guidance. Back in May 2021, the CDC had stated that fully-vaccinated individuals could essentially resume their pre-pandemic, maskless lifestyles, subject to applicable state or local mandates and any workplace restrictions. Unvaccinated or partially vaccinated individuals were recommended to mask at all times (with limited exceptions, such as when eating/drinking, alone in an enclosed room, or the mask poses a danger).
Then in August 2021, as the Delta variant raced around the globe, the CDC retreated from its maskless position for fully-vaccinated individuals. Rather, it asserted that those individuals should mask in public indoor settings if they are in an area of substantial or high community transmission, measured by total new cases and the percentage of positive COVID-19 tests. This ended up being much of the country, particularly during the Omicron wave.
The Current Guidance. Notably, the CDC no longer distinguishes between the vaccinated and unvaccinated with regard to its masking guidance. In addition, the CDC has revised the metrics by which it evaluates COVID risk. Counties are divided into low, medium and high levels, based on hospitalizations, hospital capacity and total new cases, as shown in this CDC county tracker. The masking recommendations are as follow:
- Low: No masking is required.
- Medium: Individuals should consult with their doctors as to whether they should mask indoors. The CDC also recommends that they mask indoors if they have social contact with someone at high risk for severe illness (e.g. those who are older, have certain medical conditions, or are pregnant/recently pregnant).
- High: All individuals should mask “indoors in public.”
We note that the CDC does not define what “indoors in public” means. One reasonable interpretation is anywhere where the public (i.e. non-employees) has access, such as retail space but also reception areas and multi-employer building lobbies, for example. Another, more conservative but still reasonable interpretation may include internal common areas, such as conference rooms, bathrooms and hallways.
The CDC further notes that anyone may choose to wear a mask at any time. And those with symptoms, a positive test, or exposure to someone with COVID-19 should wear a mask.
What Employers Can Do. At this time, the CDC notes that it will be updating its workplace guidance to align with the new community levels, and we expect OSHA to follow suit (given its adoption of the CDC recommendations in the last iteration of its guidance from August 2021). In addition, employers should 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 recommended actions, consistent with the latest CDC guidance on masking as well as existing OSHA workplace guidance based on vaccination status, set forth below.
- Workplace generally: In high level counties, where the workplace is also accessible to the public, all employees as well as vendors, clients or other visitors should be masked regardless of vaccination status. In counties with low or medium levels or in non-public workspaces in high level areas, employees need not wear masks (except as may be recommended by their doctors). However, in medium level counties, if there are employees at high risk of severe illness in the workplace, employers may wish to require masking, as well as compliance with social distancing protocols, in common areas.
- Outdoor work: It would appear that masks are not required for outdoor work, regardless of the county risk level or vaccination status.
- Lunchrooms: In low and medium risk counties, employees may choose to eat together, again regardless of vaccination status. Although eating and drinking is one of the identified exceptions to OSHA’s workplace masking guidance, employers in high risk counties may wish to either prohibit communal eating or to require social distancing during the shared mealtime.
- Business travel: Employees may engage in business travel, both domestic and international, although those who are not fully vaccinated and have been in close contact with a COVID-positive individual should not travel for another 5 days following their recommended 5-day quarantine period. Domestic travelers need not test before or after travel, while international travelers must be tested within 24 hours before returning to the U.S. 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. In addition, 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 has been more than two weeks since the employee was fully vaccinated or if they had a test-confirmed COVID infection within the past 90 days, they need not quarantine. A test is recommended for vaccinated employees at least 5 days following exposure (those who had a COVID infection need not test). Unvaccinated or partially vaccinated individuals should quarantine for at least 5 days with testing recommended after 5 days. All regardless of vaccination status should monitor for symptoms and should wear a mask for 10 days following exposure.
- Symptomatic Employees and Those Testing Positive: Because the vaccine is not 100%, some vaccinated employees will still get COVID-19. Of course, if any employee develops symptoms of COVID-19 following exposure, they should isolate in accordance with the CDC’s guidelines, seek a medical evaluation, and be tested. Those testing positive should isolate. Employees with symptoms or who have tested positive may be able to work remotely, or may need leave. If sick or COVID leave is available or mandated by state or local law, 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.
As we discussed in a 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. In a previous iteration of its masking guidance, the CDC had identified other factors that may be helpful to employers in evaluating whether stricter protocols may be appropriate: higher county risk levels; settings with more unvaccinated people; indoor settings with poor ventilation; inability to maintain social distancing; and activities that include shouting, physical exertion or heavy breathing, and the inability to wear a mask, among other things. We suggest that employers may also wish to consider the presence of employees at high risk of severe illness as well.
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.