As of May 16, 2021, 37.1% of the US population are fully vaccinated, with 47.4% reported to have at least one vaccination dose, according to the Centers for Disease Control and Prevention (CDC). As the vaccinated population grows and studies are conducted, the CDC continues to update and issue new guidance regarding fully vaccinated individuals. In doing so, it has widened the distinction between what those who are fully vaccinated and those not fully vaccinated are recommended to do, with respect to quarantine after travel or exposure to COVID-19, whether to wear a face covering or mask and whether to social distance.
As the CDC’s recommendations create a divide between fully vaccinated individuals and others, many state and local orders are slow to follow and continue to require all individuals to follow a plethora of COVID-19 safety requirements irrespective of vaccination status. In locations where applicable law mirrors the CDC’s guidance, employers now have options. They must decide whether to continue to require all employees or customers to follow stricter safety measures than COVID-19 laws may require (but which may be required under other applicable employment laws) or to apply different standards to employees or customers based on full vaccination status (which poses practical and employment law challenges).
This article discusses the changes to the CDC guidance, variances across the states, practical considerations for employers when making a determination on mask-wearing and social distancing policies, the impact of the CDC’s latest guidance and pending state bills on employer vaccine mandates.
CDC SAYS FULLY VACCINATED INDIVIDUALS DO NOT NEED MASKS IN MOST SITUATIONS
On May 13, 2021, CDC Director Rochelle Walensky announced, “Anyone who is fully vaccinated can participate in indoor and outdoor activities, large or small, without wearing a mask or physical distancing.”
Dr. Walensky immediately provided caveats to this guidance, stating that for public transportation (bus, plane and train) and in certain settings like hospitals, masks would still be recommended; and that recommendations may change as conditions change and further studies are published. The CDC has updated its general written guidance, and further updates are expected to be issued in writing here: CDC Updates.
CDC GUIDANCE IS NOT BINDING; EMPLOYERS REMAIN BOUND BY STATE AND LOCAL ORDERS AND LAW
CDC issues guidance and not law. While many state and local orders and laws are crafted based on CDC guidance, changes to these orders and laws are often executed days or weeks after CDC guidance is issued, and often feature nuances not seen in the initial CDC guidance.
To date, there remain several state and local requirements throughout the country that do not currently follow the CDC’s latest guidance and still require mask wearing and social distancing for fully vaccinated individuals. Employers will be required to comply with the strictest applicable health and safety orders and laws based on jurisdiction, and therefore may not have the option in some states or counties to change their mask requirements at this time, at least until state or local law is updated to more closely mirror CDC guidance.
For example, California’s applicable regulations still require all employers to mandate mask wearing in most situations. In 2020, California’s Division of Occupational Safety and Health (Cal/OSHA) adopted its COVID-19 Emergency Temporary Standard (ETS), which requires California employers to maintain, among other things, a written COVID-19 safety policy and require employees to follow social distance and wear face coverings, irrespective of vaccination status. Cal/OSHA has subsequently issued some new guidance for fully vaccinated employees related to quarantine after exposure, but has not yet modified its ETS for mask wearing or social distancing. Cal/OSHA is currently considering several ETS changes that would add safety protocol exceptions for employees equipped with respirators, narrow the scope of what constitutes an exposed group by aligning its definition with the CDC’s, and impose different standards for mask wearing, social distancing and exclusion from the worksite and quarantine for fully vaccinated individuals, but no such changes have been enacted as of the date of publication of this article.
Other states modified their mask mandates for fully vaccinated individuals immediately following, and in line with, the CDC’s announcement on May 13, 2021.
DIFFERENT MASKING POLICIES FOR FULLY VACCINATED EMPLOYEES – PRACTICAL CONSIDERATIONS
In jurisdictions where COVID-19 health and safety laws no longer require masking or social distancing for fully vaccinated individuals, employers are faced with employment law and practical considerations, including the following:
Imposing different policies on unvaccinated versus fully vaccinated employees may incentivize more employees to get vaccinated. This may provide another means for employers to incentivize employees to get vaccinated, without imposing a mandate. As previously reported in December, the EEOC has confirmed that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the Americans with Disabilities Act.
Imposing different employment policies based on vaccination status will likely highlight employee vaccination status (i.e., based on who is wearing a mask) and thereby may highlight unvaccinated employees and draw attention to information that would otherwise be confidential (e.g., a protected status based on disability or religion). Some employers, such as many hospitals, have required flu vaccinations for years and have permitted mask wearing as an accommodation for employees who cannot get vaccinated. Other employers will be facing this dynamic for the first time. All employers must remain vigilant to train and guard against discrimination or harassment based on protected status, and may consider employee training and policies that prevent employees and managers from inquiring as to someone’s vaccination status or asking “why” someone is wearing a mask or is not vaccinated.
Employers that choose to enforce two sets of policies – one for fully vaccinated individuals and one for all others – face a practical question of how to do so. For employees, does this mean that an office administrator or human resources professional is tasked with the job of walking the halls with a list of all employee vaccination statuses and enforcing the rules accordingly? Are fully vaccinated individuals issued passes? For employers with customers that come on site, will businesses confirm each person’s vaccination status before permitting unmasked patrons to enter and interact with one another and with their employees? How will businesses ensure that patrons who are not fully vaccinated will keep their masks on throughout their visit? And how may such vaccination proof requirements be limited or prohibited by state laws and executive orders in states like Florida and Texas governing “vaccine passports”? Employers must assess these realities and determine what options will work best for their workforce and customer population to maintain safety, confidence and brand protection.
Where the law permits employers to loosen masking requirements amongst the fully vaccinated, the decision of whether to do so and in which locations remains highly individualized and may shift over time. Employers must continue to review the COVID-19 case data for their jurisdictions and assess overall safety and health measures that are appropriate for their own workforce and customers in order to provide a safe worksite as required under OSHA and similar state laws.
DIFFERING RESTRICTIONS FOR FULLY VACCINATED INDIVIDUALS AND THE IMPACT ON VACCINE MANDATES
As our previous article covers, employers can generally mandate COVID-19 vaccines, subject to some conditions and exceptions, including that mandatory vaccination policies must be job-related and consistent with business necessity or justified by a direct threat.
As the CDC continues to issue guidance, and laws follow, that permit fully vaccinated persons to do more things than those not fully vaccinated, this may provide employers with additional business necessities for asking for proof of vaccination and requiring vaccination for certain roles. The increase in the availability of vaccines also makes this possible.
Employers must also be vigilant about tracking developments in state law in this area, as several states have pending bills that – if signed into law – would make it unlawful to make an employment decision based on an employee’s vaccination status. For example, in Texas, House Bill 1687 is pending legislation introduced on February 8, 2021, that would prohibit employment discrimination (including failure to hire) by employers, labor organizations and staff agencies based on an employee’s vaccine status. In New Jersey, Assembly Bill 3861 introduced on April 26, 2021 would make it unlawful to ask any person if they have received a COVID-19 vaccine, require them to receive a COVID-19 vaccine, or require an individual to show proof of having received a COVID-19 vaccine. If any such bill is passed into law, employers may be prohibited from maintaining a mandatory vaccine policy in such states, or may face significant restrictions in doing so.
We are here to help. Our McDermott Will & Emery employment team of lawyers are tracking the latest state and local developments and are here to assist you with practical and protective guidance for navigating these complex workplace and business issues.