United States: What Does The New CDC Guidance Regarding Masks Mean For Employers?

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) issued new guidance withdrawing the mask and physical distancing requirements for fully vaccinated individuals. The new CDC guidance raises issues for employers with respect to the requirements under existing state emergency temporary standards (ETS), state regulations and orders, and the employer's ability to mandate the use of masks by employees or customers and to request proof of vaccination. We anticipate that various federal agencies will issue more guidance soon. In the meantime, to help employers to think through the answers to these questions, we provide the following information.

How does the CDC define the term "fully vaccinated" individual?

The CDC considers individuals " fully vaccinated" two weeks after their second dose in a 2-dose vaccine series, such as the Pfizer and Moderna vaccines, or two weeks after a single-dose vaccine, such as the Johnson & Johnson Janssen vaccine.  Fully vaccinated individuals are permitted to resume pre-pandemic activities without wearing a mask or maintaining 6-feet from other individuals, except as required by federal, state, local, tribal and territorial laws and workplace guidance. In the event a fully vaccinated individual is exposed to COVID-19, the exposed individual is not required to quarantine or physically distance from others so long as they remain asymptomatic. For fully vaccinated individuals who reside or work in a correctional or detention facility or a homeless shelter, however, the CDC recommends such individuals get tested for COVID-19 if they are exposed to COVID-19 even though they remain asymptomatic.

Should employers comply with rules issued by OSHA-approved state plans and state and local regulations and orders that are stricter than the current CDC guidance?

Yes. The CDC guidance specifically defers to federal, state, local, tribal and territorial rules or orders that require individuals to wear masks and does not preempt such laws, rules or orders. As a result, employers must continue to monitor and to comply with state and local rules, regulations, and orders, including a state ETS. We anticipate that state and local authorities will adjust their rules and regulations in the near future to take into consideration the new CDC recommendation.

An Federal Emergency Temporary Standard is still being reviewed and considered by OSHA.  Of course, any new standard must now consider the new guidance issued by the CDC.

Can employers continue to mandate masks and social distancing in the workplace for all individuals?

Yes. The CDC guidance does not supersede the employer's workplace rules. Many employers have adopted an infection control and prevention plan or a COVID-19 Prevention Plan that mandates mask and social distancing rules applicable to employees, customers and other third parties. Employers may continue to mandate the use of masks by employees, customers and third parties to the extent that the employer's rules and policies are not contraindicated by state and local rules or orders.

Are employers permitted to ask employees if they are fully vaccinated and to request proof of vaccination by requiring the employee to show the vaccination card to the employer?

Yes. The EEOC guidance provides that requesting proof of vaccination from an employee is not a disability-related inquiry. As such, employers are permitted  to request proof of vaccination from employees. As we have indicated in our previous post, employers should not ask follow-up questions regarding the reason the employee has not been vaccinated because such inquiries risk eliciting information about disabilities and are subject to the requirements of the Americans with Disabilities Act. If employers maintain copies of vaccination records, then such records must be treated as confidential medical records and maintained separately from personnel records.

Is OSHA still requiring all employers to enforce mask wearing in the workplace regardless of whether employees are fully vaccinated or not vaccinated?

The OSHA website currently states: "The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers."  We expect OSHA guidance will be updated soon. CDC guidance (updated on May 13, 2021) provides:

• Fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance
• Fully vaccinated people can refrain from testing following a known exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter