Masks Redux? What Employers Need to Know About the Latest Guidance for Fully Vaccinated Individuals from the CDC

By Fiona W. Ong - Shawe Rosenthal LLP

August 4, 2021

As we discussed in our May 14, 2021 blog post, “Back to Normal for the Fully Vaccinated? What the CDC’s Latest Guidance Means for Employers,” the CDC had previously stated that fully-vaccinated individuals could essentially resume their pre-pandemic, maskless lifestyles, subject to applicable state or local mandates. But the CDC also stated that those individuals were still required to comply with workplace requirements. Given the rapid spread of COVID-19’s Delta variant and the increase in cases, particularly in areas of low vaccination rates, the CDC has now revised its guidance. So what does this mean for employers?

As a general matter, the CDC’s guidance is not mandatory; it consists of recommendations. However, compliance with the recommendations means that employers are also meeting their obligation under the General Duty clause of the Occupational Safety and Health Act to provide a safe workplace. We also note that OSHA has recently updated its non-mandatory COVID-19 guidance for the workplace.

What are the rules now? Just as under the prior guidance, the revised guidance states that fully vaccinated individuals (meaning at least two weeks after the second/only required shot for the vaccine in question) may:

•    Participate in many of the activities that they did before the pandemic; for some of these activities, they may choose to wear a mask.
•    Resume domestic travel and refrain from testing before or after travel and from self-quarantine after travel
•    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
•    Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings
•    Refrain from quarantine following a known exposure if asymptomatic
•    Refrain from routine screening testing if feasible

In addition, fully-vaccinated individuals should continue to:

•    Get tested if experiencing COVID-19 symptoms.
•    Isolate if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms.
•    Follow any applicable federal, state, local, tribal, or territorial laws, rules, and regulations

But what is new is that fully-vaccinated individuals:

•    Should wear a mask in public indoor settings if they are in an area of substantial or high transmission (such areas are indicated on a CDC map). This includes much of the country, and most major metropolitan areas. Masking was not previously recommended in the previous iteration of the guidance. We note that the CDC does not define “public indoor settings.” 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 expansive but still reasonable interpretation may include internal common areas, such as conference rooms, bathrooms and hallways.

•    May choose to mask regardless of the level of transmission, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease (including older adults or those with certain medical conditions, like diabetes, obesity or heart conditions), or if someone in their household is unvaccinated.

•    Should get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days after exposure or until a negative test result. Testing and masking was not recommended in the previous iteration of the guidance.

What Employers Can Do. Oddly, the CDC’s latest iteration of the guidance makes no reference to workplace mandates. Nonetheless, employers can still impose requirements in the workplace. With regard to those workplace requirements, please 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, set forth below.

•    Workspace generally: Most workplaces will have a mix of vaccinated and unvaccinated individuals. In areas of high or substantial transmission, where the workplace is also accessible to the public, the CDC recommends that all employees as well as vendors, clients or other visitors be masked regardless of vaccination status.

Otherwise, in areas of low or moderate transmission or in non-public workspaces, vaccinated employees need not wear masks or observe social distancing protocols. However, even in these areas, the CDC still says that unvaccinated employees should continue to maintain all COVID-19 protocols generally, including masking and distancing. Additionally, in these areas, if all employees in a particular enclosed and non-public workspace are vaccinated, those employees need not wear masks or stay at least six feet apart – unless there is a state or local masking mandate that still applies to the workplace (or indoor spaces, more generally). Vaccinated vendors, clients or other visitors to the workplace also need not wear a mask, while unvaccinated ones should continue to do so.

•    Small group meetings: As before, if all participants in a non-public, small group meeting have been vaccinated, they need not wear masks or stay at least 6 feet apart during the meeting. Although the CDC guidance permits vaccinated individuals to be within 6 feet of unmasked, unvaccinated ones, the guidance for unvaccinated individuals continues to emphasize the need for a mask and distancing, apparently even from vaccinated individuals. The best practice would be to require unvaccinated employees to continue to wear a mask when meeting with their vaccinated, mask-free colleagues.

•    Outdoor work: The new guidance does not alter the previous recommendation that fully vaccinated employees working outdoors need not wear masks or socially distance from other employees, regardless of how many people are around or the transmission rate in their area. Again, unvaccinated employees should continue to mask, socially distance (where possible) and avoid large groups.

•    Lunchrooms: If fully vaccinated employees wish to eat together, they can be permitted to do so. Arguably, unvaccinated colleagues could join them, although, as noted above, the CDC guidance for those individuals is to continue to observe measures such as masking and social distancing.

•    Business travel: Employers can allow fully-vaccinated employees to resume business travel, both domestic and international. Domestic travelers need not test before or after travel, while international travelers must be tested before returning to the U.S., with testing recommended 3-5 days following return. 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. Employers should continue to try to minimize any required travel for unvaccinated employees. Moreover, 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, they need not quarantine.  Exposed, vaccinated employees should still monitor for symptoms. But in addition, they now should get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days after exposure or until a negative test result. Unvaccinated or partially vaccinated individuals should quarantine for at least 7 days with testing after 5 days, or for 14 days without testing.

•    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 leave is available or mandated by state or local law – or FFCRA leave is available and allowed by the employer (through September 30, 2021) – 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 an earlier blog post, employers may implement and maintain current COVID-19 protocols that exceed what the CDC is recommending or that OSHA recommends or mandates.  The CDC had previously noted that there may be higher risk – and consequently employers may wish to implement more stringent safety measures – where there are higher community transmission rates. It has now taken that responsibility out of employers’ hands with its new guidance. But it had also identified other factors that may be relevant to this determination: higher community transmission rates; 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. (This particular observation is no longer part of the CDC guidance, but actually continues to be a useful part of the analysis for an employer assessing infection risk in the workplace).

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.