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.
With over 126 million vaccinations administered in the U.S. as of March 22, 2021, many Americans are reaching “fully vaccinated” status. Jackson Walker Labor & Employment attorney Brooke Willard discusses the recently issued CDC guidance on Interim Public Health Recommendations for Fully Vaccinated People and what employers can do as employees transition from unvaccinated to fully vaccinated.
Greg Lambert: Hi, everyone. I’m Greg Lambert, and this is Jackson Walker Fast Takes. With vaccines rolling out across the country, the CDC recently issued Interim Public Health Recommendations for Fully Vaccinated People. I asked Jackson Walker Labor & Employment attorney Brooke Willard to discuss how these guidelines may be viewed through the lens of an employer.
Brooke, welcome back to the show.
Brooke Willard: Thanks for having me.
Greg Lambert: First off, Brooke, would you mind just telling us a little bit about what the CDC’s guidelines say?
Brooke Willard: Absolutely. As more and more individuals in the U.S. are receiving COVID-19 vaccinations, a hope to return back to normal life is on the rise and people are looking for direction here. So, on March 8th, the Centers for Disease Control and Prevention (CDC) issued its Interim Public Health Recommendations for Fully Vaccinated People. According to the CDC, someone is considered “fully vaccinated” at least two weeks after receiving their second dose in a two-dose series – so, Pfizer or Moderna – or at least two weeks after receiving a single-dose vaccine – AKA, the Johnson & Johnson vaccine.
I actually received my second dose of Moderna on March 30th. So, according to the CDC, I’m going to be considered fully vaccinated on April 13th.
Greg Lambert: Congratulations.
Brooke Willard: Oh, thank you. I’m excited. I’m excited to be fully vaccinated.
In this publication, the CDC provides new freedom in some areas but also recommends maintaining the status quo in others. Let’s start with the good news.
First, fully vaccinated people can visit with other fully vaccinated people indoors without wearing masks or physical distancing. In other words, if you want to invite a group of fully vaccinated people over to your house for dinner, the CDC says party on.
Second, fully vaccinated people can visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing. So, let’s assume you, Greg, are fully vaccinated and your unvaccinated friend and his unvaccinated family, who are all healthy and not immunocompromised, they invite you over to their house for some barbecue. The CDC gives blessing for you to join the party without a mask and without physical distancing.
Greg Lambert: Okay.
Brooke Willard: So, that’s good news.
Greg Lambert: Yes.
Brooke Willard: Third, if a fully vaccinated person is exposed to someone with COVID-19 and the fully vaccinated person is asymptomatic, then the CDC says the fully vaccinated person does not have to quarantine and that person doesn’t have to get tested.
Greg Lambert: Well, good. That’s really encouraging news and indicates that the CDC seems to have faith in the effectiveness of the COVID-19 vaccines. However, as you’d mentioned earlier, we’re also hearing that the CDC is cautioning us to maintain the status quo in certain areas. So, what is it that they’re asking us to maintain right now?
Brooke Willard: You’re absolutely right. We are not quite out of the woods just yet.
- First, what the CDC says, when a fully vaccinated person is out in public, keep wearing a mask and keep social distancing. This makes sense, right? Because out in public, even though say I’m fully vaccinated, I have no clue who’s been vaccinated and who has not. I also have no clue who’s low risk and who is high risk.
- Second, a fully vaccinated person should wear a mask and practice physical distancing when visiting with an unvaccinated person who is at an increased risk of COVID-19.
- Third, a fully vaccinated person should mask up and practice social distancing when visiting unvaccinated people from multiple households. For instance, if fully vaccinated, Greg, if you get invited to a party where unvaccinated people from multiple households are going to be there, then CDC recommends that you wear a mask and you socially distance.
- Fourth, the CDC says that fully vaccinated people should avoid medium and large size in-person gathering. Now, I couldn’t find a headcount definition provided by the CDC as to medium and large, but the CDC has said that things like sporting events, concerts, festivals, conferences, parades, these are all large events that you should avoid going to even though you are fully vaccinated – at least for now.
Greg Lambert: Got it.
Brooke Willard: The CDC also says a fully vaccinated person should get tested if experiencing symptoms of COVID-19 and follow CDC travel recommendations.
Finally, the CDC says that fully vaccinated people should, of course, follow guidance issued by their employers.
Greg Lambert: So, Brooke, how does this apply to employer workplace policies as employees start returning to work?
Brooke Willard: The short answer is, best practice, to keep the status quo here and enforce mask wearing and social distancing for now. The interim guidance stated that fully vaccinated people should wear a mask and practice social distancing when visiting with unvaccinated people from multiple households. Now, this is a common workplace experience. Not everyone is fully vaccinated, and people from multiple households are coming into the office. We can’t forget that employers have a general duty under OSHA. All employers have the duty to provide a work environment that is free from recognized hazards that are causing or likely to cause death or serious physical harm. We also need to remember that, in a lot of workplaces, it’s not just the employees in that space. You could have customers or clients, you may have third-party contractors coming into that workspace. So, it is safest to keep the masks and social distancing for now.
Greg Lambert: But can an employer ask the employee about whether or not they have received the vaccinations?
Brooke Willard: Generally, yes. An employer can say if you, employee, are fully vaccinated or if you choose to become fully vaccinated in the future, let us know. This is the employer gathering data as to the relative safety of the workplace. It is relevant information moving forward as to how to structure safety precautions. Under the EEOC’s guidance released on December 16, 2020, asking an employee to show proof of receipt of the COVID-19 vaccine is not a disability-related inquiry. But employers should keep in mind the COVID-19 vaccine is under Emergency Use Authorization. It has not reached FDA Biologic License Application approval, which is commonly referred to FDA BLA approval. I would direct you to a recent JW podcast, which specifically addresses the question of whether or not an employer should mandate the COVID-19 vaccine.
Greg Lambert: Alright, well, is there any other news of note that employers should think about at the moment?
Brooke Willard: Yes, actually. On March, 12 2021, OSHA actually issued its COVID-19 National Emphasis Program (NEP). So, employers, OSHA inspections could be coming your way.
Now, back in January of this year, President Biden gave OSHA a deadline of March 15th to issue a COVID-19 Emergency Temporary Standard, but instead of issuing the Emergency Temporary Standard, OSHA issued this National Emphasis Program. A National Emphasis Program – it’s a way for OSHA to target specific high-hazard industries or specific hazards in common workplaces. So, OSHA will be ramping up enforcement efforts with both programmed and unprogrammed inspection. For programmed inspections, the NEP would target high-risk industries for COVID-19. We’re talking health care and personal care industries, including physicians, dental offices, home health care, ambulance services, hospitals, etc., but also non-healthcare industries such as meat processing, poultry, supermarket, grocery stores, discount department stores, warehouses, restaurants, prisons, etc. The National Emphasis Program also addresses whistleblower protections for employees who submit a complaint related to workplace conditions as it relates to COVID-19.
We will also be watching like a hawk for OSHA to publish the Emergency Temporary Standard, which could be released very soon. This will give us a clear picture for employer safety directive.
Greg Lambert: Brooke Willard, thank you very much for taking the time to talk with me.
Brooke Willard: Of course. Thank you.
The music is by Eve Searls.
This podcast is made available by Jackson Walker for informational purposes only, does not constitute legal advice, and is not a substitute for legal advice from qualified counsel. Your use of this podcast 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.
- JW Coronavirus Insights & Resources microsite »
- JW Fast Takes Podcasts & Webinars »
- COVID-19 & Your Business: Frequent Questions »
- Sign Up for JW eAlerts »
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.