On May 13, 2021, the Centers for Disease Control and Prevention (CDC) announced that fully vaccinated individuals no longer need to wear a mask or practice social distancing in any setting. In response, the Occupational Safety and Health Administration (OSHA) adopted (by reference) the CDC’s May 13 guidance. While these announcements are a welcome relief, because the CDC’s announcement offers no specific guidance for employers, many employers are left questioning what the best practices are for proceeding to a mask-less workplace.
CDC Announcement
In short, the May 13 announcement indicates that fully vaccinated people can now resume activities without wearing masks or physically distancing, except where required by federal, state, or local laws, rules, and regulations, including local business and workplace guidance. Specifically, fully vaccinated people can now:
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Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel;
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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 United States;
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Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings;
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Refrain from quarantine following a known exposure if asymptomatic; and
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Refrain from routine screening testing if feasible.
There are several caveats to this announcement, however. First, the CDC announcement states that some business settings may choose to continue to require masks and social distancing. Additionally, those in healthcare setting have no choice—they need to continue to follow previous guidance regarding masks and social distancing regardless of vaccination status. Additionally, there is the concern of business guests. While the CDC’s announcement included an accompanying chart indicating that many day-to-day activities are considered “safest” – including dining at an indoor restaurant, visiting a hair salon, shopping at an uncrowded retail store, and more – the chart is designed with the vaccinated visitor in mind and not for the business actually hosting those guests.
For employers considering relaxing or eliminating mask mandates and social distancing protocols for those who are fully vaccinated, there are several considerations to take into account before proceeding:
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Local laws and regulations may still require employers to enforce such rules regardless of vaccine status.
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OSHA (discussed below)
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States with their own OSHA equivalents may also have different standards to consider and these State agencies could step in, as necessary.
In order to loosen restrictions, some employers will need to know who is vaccinated, which will require employers to inquire about and potentially track the vaccine status of your employees to determine whether someone is fully vaccinated. The Equal Employment Opportunity Commission (“EEOC”) has specifically stated that employers may inquire about employee vaccination status without violating the Americans with Disabilities Act (“ADA”). Specifically, employers are legally allowed to request proof of vaccination, such as by requiring their employees to provide a copy of the completed CDC-issued vaccine card or a vaccination status printout from the health care provider that provided a vaccine. Such a request, on its own, is unlikely to reveal information about a disability, and is therefore not a prohibited disability-related inquiry. Importantly, some of employees may have legitimate medical or religious reasons for abstaining from the vaccine. Employees who are unvaccinated and can be required to continue wearing masks and maintain social distancing could have a claim for retaliation if they are harassed or discriminated against in violation of federal safety laws or other legal principles.
OSHA Announcement
On May 18, 2021, OSHA adopted (by reference) the CDC’s May 13 guidance for fully vaccinated individuals in many non-healthcare settings. Specifically, OSHA announced that employers should “refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”
Since early 2021, OSHA has taken an aggressive position with regard to ramping up COVID-19 workplace health and safety enforcement, which often appears to conflict with CDC guidance. OSHA has not yet issued specific regulations relating to COVID-19 or infectious diseases more generally. OSHA purportedly has drafted a COVID-19 emergency temporary standard (ETS), which has not yet been released.
On January 29, 2021, OSHA issued COVID-19 guidance. With respect to vaccinated employees, OSHA stated that “workers who are vaccinated must continue to follow protective measures, such as wearing face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person to person.” This prior guidance from OSHA appears to conflict with CDC’s May 13 update. Yet, while the OSHA website still requires vaccinated employees to continue to mask and social distance, OSHA has added a banner at the top of the webpage indicating that the CDC’s May 13 guidance will trump OSHA’s vaccinated employee guidance while OSHA reviews its own measures, and that new guidance from OSHA is forthcoming.
With respect to enforcement, OSHA looks to its guidance to determine whether hazards are “recognized” and whether employers’ health precautions are sufficient to abate the hazards. Due to OSHA’s adoption by reference of CDC’s May 13 update, it is not likely that OSHA will try to establish liability based on alleged exposures from vaccinated, asymptomatic employees.
Takeaway
Although this return to some semblance of normalcy is a relief after over a year of lockdowns and restrictions, employers should remain cautious in revising policies. Considerations must be given to the numerous issues that may arise surrounding loosening COVID-19 restrictions. Also, it is important to remember, however, that CDC and OSHA guidance are merely guidance. Applicable state and local requirements and regulations continue to be a significant consideration. Employers should also consider various potential discrimination issues and privacy expectations, among others, when implementing new changes and requirements. Ultimately, the solutions will vary greatly based on individualized needs and circumstances of each employer.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
