By Conn Maciel Carey’s COVID-19 Task Force
By now you have likely heard the big news that yesterday, May 13th, the CDC updated guidance related to masks and physical distancing for individuals who are fully vaccinated (i.e., two weeks after receiving a single-dose vaccine or after the second dose in a two-dose series). Specifically, in its updated guidance — “Interim Public Health Recommendations for Fully Vaccinated People” — the CDC now says fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances. As of now, there is no outside limit to one’s status as fully vaccinated.
In a public video released just before the CDC posted its updated written guidance, CDC Director Dr. Walensky shared that “based on data about vaccine effectiveness and the low risk of transmission to others, and universal access to vaccines today, the CDC is updating our guidance for fully vaccinated individuals. Anyone who is fully vaccinated can participate in indoor and outdoor activities—large or small—without wearing a mask or physical distancing.” Even in the case of “breakthrough” infections, Dr. Walensky acknowledged that there is likely low risk of transmission to others. Dr. Walensky cautioned that “over the past year, we saw how unpredictable this virus can be, so we may have to change these recommendations if things get worse.”
What Does This Mean For Workplaces?
The question everyone is asking is whether this updated guidance applies to employees and workplaces. The best answer we can give now is that the guidance does technically apply to workplaces, but there is a significant exception relative to workplaces built into the new guidance that swallows most of the relief it purports to provide, at least for now in many jurisdictions. Here’s our analysis about why this new guidance does apply to workplaces, but how geographically limited the relief is for the time being.
Recent prior CDC guidance that began to relax requirements for vaccinated individuals was very careful to not cover workplaces and individuals in their capacity as employees. Rather, in identifying when and where vaccinated individuals can lose masks, the CDC focused entirely on personal, non-work activities. CDC avoided any mention of work activities, and even for the personal activities that occur at someone else’s workplace (e.g., vaccinated persons going to a barber shop as a customer), the CDC still recommended both vaccinated and non-vaccinated individuals continue to wear masks).
When the CDC did address workplace-related guidance, like its March 25th “Workplace Vaccination Program” update, it continued to treat vaccinated and unvaccinated workers the same:
After employees are fully vaccinated, they may be able to start doing some things they had stopped doing because of the pandemic. However, in work settings, even after employees receive a COVID-19 vaccine, they may still need to take steps to protect themselves and others in many situations. Employers should continue to follow the Guidance for Businesses and Employers Responding to COVID-19. This includes wearing well-fitting masks, making sure employees are staying at least 6 feet (about 2 arm lengths) apart from each other, avoiding crowds and poorly ventilated spaces, and washing hands often. The more contact the employees have with one another the more likely they are to be exposed to COVID-19. If other workplace health and safety measures, such as engineering controls (e.g., barrier protections), were installed, they need to remain in place.”
Likewise, federal OSHA’s January and February updates to its workplace COVID-19 guidance pursuant to President Biden’s Day 1 OSHA Executive Order – “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” continued to draw no distinction:
Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not enough evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
Today’s CDC update, however, was different. It spoke of all vaccinated individuals and essentially all settings – Dr. Walensky said “anyone who is fully vaccinated” is covered by this new guidance, and “based on the continuing downward trajectory of cases, the scientific data on the performance of our vaccines, and our understanding of how the virus spreads, this moment has come for all fully vaccinated individuals.”
The guidance also expressly references some workplace settings that are carved out from the relief in the guidance, which supports a conclusion that the guidance otherwise applies to all other, non-exempt workplaces. For example, where the guidance talks about exempting vaccinated individuals from quarantine and testing requirements, the guidance says that “fully vaccinated…employees of correctional and detention facilities” should still be tested if they experience a close contact exposure. Similarly, the guidance makes clear that the relaxed requirements do not apply in healthcare settings – “The following recommendations apply to non-healthcare settings. Guidance for … staff of healthcare settings can be found in the Updated Healthcare Infection Prevention Control Recommendations in Response to COVID-19 Vaccination. By singling out workers in correctional facilities and healthcare workplaces, it is hard to read the guidance in a way that it is not intended to apply to all other work environments.
Dr. Walensky gave another television interview last night in which she was asked specifically about whether it was safe for a fully vaccinated employee to sit all day at work right next to a known unvaccinated co-worker who may not be fully mask-compliant. Dr. Walensky answered that it is safe for the vaccinated worker, who she indicated would be 95%-97% protected from disease, and for whom rare breakthrough infections result mostly in asymptomatic or very mild disease (i.e., essentially 100% effective at preventing severe infections, hospitalizations, and death) and present a very low risk of infection to others (i.e., low or no shedding of virus to others). The work scenario described, however, is not safe for the unvaccinated person, she added, so the CDC advises that person to keep his mask on, or better yet, go get vaccinated.
So yes, this new guidance applies to workplaces (except in healthcare and correctional facilities).
However, before we get ahead of ourselves, there is a significant exception to the scope of this guidance. Specifically, as written, the updated CDC guidance expressly limits its own geographic applicability by deferring to virtually any state or local area’s existing mask/distancing mandates or recommendations. It states that:
Masks, distancing, quarantine and testing are not required for fully vaccinated individuals “except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.”
What the exception means is that the new guidance does not supersede existing, conflicting state or local laws, like governors’ executive orders, State OSH Plan emergency standards in California, Virginia, Michigan, Oregon, and Washington, and state and county health department mandates. Thus, the reach of this new guidance into workplaces is quite limited, at least for the time being — until state OSH agencies, governors, mayors, health officials, etc., revise their guidance based on the CDC’s new position.
Where that exception gets a little murky is the reference to “local business and workplace guidance” as prevailing over this updated CDC guidance. If this reference is intended to include federal OSHA guidance, then this updated CDC guidance would not change anything for any employers until OSHA updates its guidance – “[w]orkers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant” – or until OSHA issues the emergency temporary standard that is at OMB right now. Our interpretation of the guidance, however, is that it does not defer to federal guidance. It looks to us like the use of the term “local” to modify “workplace guidance” was purposeful; i.e., this updated CDC guidance supersedes federal and state guidance, but it takes a backseat to county and municipal guidance, because localities have a better handle on the conditions within their communities, and they have the ability to move more quickly.
Accordingly, under this new CDC guidance, employers may permit their fully vaccinated employees to work without a mask or distancing, inside or outside, unless there are mask and distancing requirements in an applicable:
- State OSH Plan emergency temporary standard
- Governor’s executive order
- A state or county health department mask mandate
- A state law, rule or regulation
- A local law, rule, regulation; or
- “Local [i.e., county or municipal] business and workplace guidance.”
Conversely, employers operating in states or counties that continue to have active mask and distancing mandates, or where the locality continues to mandate or recommend masks and distancing in workplaces, should continue to comply with those requirements.
Even for those limited jurisdictions where there is no prevailing law, mandate, or guidance that requires continued masking and distancing at work, and where this new CDC guidance does apply, we recommend that if and as employers eliminate mask requirements for fully vaccinated employees, they first develop a system to make reasonable efforts to verify employees’ vaccination status. So, if any employer is considering changing its mask or distancing requirements, we strongly recommend implementing a policy to request and log or keep a copy of employees’ vaccination records.
The law permits employers to ask about vaccination status (yes or no) and to request proof of vaccination. Doing so will protect employers from the continuing risk of General Duty Clause citations from OSHA if employers are relying simply on the word of their employees about getting vaccinated, in an environment where employees are known to be routinely misrepresenting their vaccination status. Note, however, employers need to be cautious about how they make this inquiry. The query may not elicit responses that violate the Americans with Disabilities Act or otherwise violate labor and employment laws including the ADA and Title VII; i.e., if the employee has not been vaccinated, do not ask “why not.”
In situations where an employee refuses either to get the vaccine or to demonstrate that s/he has been vaccinated, the employer should not consider the employee to be fully vaccinated. This is specifically called for in Cal/OSHA’s proposed amended COVID-19 ETS; i.e., for an employee to count as “fully vaccinated,” the employer must have “documentation showing that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine.” We would not be surprised if the much-anticipated fed OSHA ETS adopted a similar scheme, and we support inclusion of such a requirement because it provides employers a basis to request proof from their employees based on a federal requirement, rather than a perceived lack of trust.
Overall, yesterday’s development was big and welcome news. However, for right now, we recommend that employers treat carefully as they consider changes to COVID-19 protocols in the workplace in response to the new CDC guidance, regardless of the state and local requirements. We still anticipate federal OSHA will issue an ETS within the next three weeks. Governors and state and local health departments will be responding to today’s new guidance in the coming days. Around CMC’s principal office in Washington, DC, for instance, the mayor of DC and the governors of Virginia and Maryland all said essentially the same thing yesterday – they are continuing to follow CDC guidelines as they have throughout this pandemic, and they are reviewing the new mask and distancing recommendations and will update their guidance and requirements accordingly. It took most jurisdictions a few days to a few weeks to catch-up to other big CDC updates, like changing quarantine periods.
If possible, then, we recommend employers wait at least until your localities react to the news and until OSHA either issues its ETS or announces it will not do so and instead updates its workplace guidance. These follow-up actions from appropriate authorities will facilitate employers moving full steam ahead to the end of the mask era, while creating significant incentives for the still unvaccinated to get their shots.
What Does This Mean for Federal OSHA’s COVID-19 Emergency Rulemaking?
Because OSHA has been following an emergency rulemaking process, the public has not seen proposed regulatory text. We understand that throughout the rule drafting process, OSHA was coordinating with OMB. So it is likely somewhat misleading that there was a magic point-in-time when the ETS was delivered to OMB. What is more likely is that OSHA and OMB agreed that the draft was final and ready to be issued, so OIRA could officially start taking stakeholder meetings to check that box.
The significance of that kind of process, as opposed to a traditional rulemaking with APA notice-and-comment where the public sees and comments on a proposed rule, is that they can much more easily make last minute changes without having to redo much of the process. Since none of the stakeholders that have met with OIRA know what the draft rule says about masking and distancing, no stakeholder could be prejudiced by changes that OSHA may make to the mask/distancing provisions of the ETS after their opportunity to talk with OMB about it.
Perhaps this announcement leads OSHA to decide not to issue an ETS at all, but if they do, there is not a regulatory reason that it could not reflect this new guidance from CDC. But it is still our opinion that OSHA will issue an emergency rule. It was a major campaign promise to labor, so we would not be the least bit surprised to still see an ETS issued, but perhaps it will be much watered-down from what Cal/OSHA has, and perhaps even from what OSHA sent to OMB a few weeks ago.
Contact any of the OSHA-specialist attorneys with Conn Maciel Carey’s national OSHA Practice if you have any questions or would like to talk about how this development affects your workplace(s), or if we can help you revise or develop your COVID-19 or vaccination policies to ensure you are on the right, risk-free path as you interact with employees about vaccination and vaccination status.