As companies of all types and sizes continue to deal with the potential legal implications of the COVID-19 pandemic for their businesses, Jackson Walker provides insights and resources on the COVID-19 Legal Resources & Insights site.
The Centers for Disease Control and Prevention (CDC) yesterday announced revised guidance for persons who have been fully vaccinated. The CDC stated directly, “If you are fully vaccinated, you can resume activities that you did prior to the pandemic.” This is, as CDC Director Dr. Rochelle Walensky stated, a moment longed for—“when we can get back to some sense of normalcy.” For employers, the White House notably told its staff that masks were no longer required on campus for those who have been fully vaccinated.
Employers and employees feeling the urge to discard masks and social distancing rules should take a moment before rushing to do so. Most importantly, the revised guidelines apply only to those who are fully vaccinated, and previous mask and social distancing requirements still apply to those who are not fully vaccinated. Currently, less than half—45.6%—of the US population over 18 is fully vaccinated.
The CDC noted that social distancing and mask requirements still apply where required by federal, state, or local law. More specifically, the revised guidance notes that masks are required in healthcare settings like doctor’s offices and on planes, buses, trains, and other forms of public transportation. When experiencing symptoms, especially after exposure to a person who is sick, the CDC recommends that persons immediately wear a mask and get tested.
Employers should also note that OSHA has not yet revised its guidelines, which apply more directly to the workplace than the CDC’s general guidance. OSHA guidelines, at least for now, state specifically, “It is important to wear a face covering and remain physically distant from co-workers and customers even if you have been vaccinated because it is not known at this time how vaccination affects transmissibility.” While the data reported by the CDC in announcing its revised guidance and the White House’s own memorandum to its staff suggest that revised OSHA guidance may be forthcoming, employers may consider waiting to see what OSHA says before substantially revising existing policies.
Some workforces will tend to be have more employees vaccinated than others. Employers may ask employees to show proof of receipt of a COVID-19 vaccination without violating the Americans with Disabilities Act; however, asking why an individual did not receive a COVID-19 vaccine may violate the ADA’s restrictions on medical inquiries. Mandatory vaccination policies most likely do not run afoul of EEOC guidelines, provided that reasonable accommodations are made for those who have a medical (including pregnancy) or religious reason for not being vaccinated, and that medical information is kept confidential according to ADA requirements. For now, as discussed in an earlier Jackson Walker podcast, employers should also consider that COVID-19 vaccines are designated as “Emergency Use Authorization” vaccines, as opposed to vaccines that have received FDA vaccine licensure, before adopting a mandatory vaccination policy.
Notably, the relaxed CDC guidelines specifically state that employer policies should still be observed. Therefore, employers may elect to require masks and social distancing, and the CDC guidelines do not allow employees to disobey employer requirements. Any at-will employee remains subject to discipline and termination for failing to meet employer safety standards.
In reviewing their policies, employers should consider issues raised by their particular workforces and situations, such as the following:
- What are the State or local requirements or guidelines? The CDC announcement stated that “federal, state, local, tribal, or territorial laws, rules, and regulations” continue to apply, and requirements or government recommendations remain in certain industries (e.g., public transportation, hospitals, prisons, homeless shelters). In Texas, the Health Recommendations issued by the Governor’s Strike Force to Open Texas continues to recommend face coverings when social distancing is not possible for all employers and for particular industries, like restaurants.
- How much of the workforce is vaccinated? Employers should consider practical difficulties of allowing some, but not all, employees to forego masks.
- Do employees work in close proximity to other individuals for prolonged periods? If so, employers may require masks and consider other steps to minimize risk of transmission.
- Do employees have frequent contact with unvaccinated persons? This will be particularly true of employees in public settings like restaurants, entertainment, retail, and similar establishments. To remain consistent with CDC guidelines, transportation, health care, and other employers whose employees work in close contact with the public should continue to require masks, social distancing, and other anti-pandemic safety measures.
- Will customers be more comfortable if employees interacting with the public continue to wear masks? Again, restaurants, entertainment, and similar venues may wish to continue mask and social distancing policies.
- How will the workforce react if a mask requirement is removed? Some employees will welcome “no mask required,” while others (particularly those who may not have been able to be vaccinated) will feel that the workplace is less safe and may refuse to return to work.
For now, employers may well want to leave existing policies in place, particularly until OSHA revises its guidelines. Those employers who, after considering the legal and workforce risks, elect to go to “no mask required” for fully vaccinated employees should make provisions for those who are immunocompromised and prohibit retaliation against those employees who feel safer while continuing to wear a mask. Employer policies should also prohibit retaliation against those who raise or voice safety concerns, as such activity is protected for both union and non-union employees under the National Labor Relations Act and the Occupational and Safety Health Act. Finally, employers should remember that, while the fight against COVID-19 is advancing, it is not over, and should maintain appropriate safeguards to reduce the risk of exposure to employees, vendors, and customers.
 In general, people are considered fully vaccinated: (a) two weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or (b) two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.
 See CDC’s COVID Data Tracker. Texas trails the national average with 40.25% of the population, 16 and older, fully vaccinated.
 See OSHA’s “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” An OSHA circular does provide exceptions for employees working outdoors in hot and humid conditions.
 See EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
 As noted above, OSHA guidance remains in place.
Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.