On May 13, 2021, the CDC issued new guidance for vaccinated individuals to cease wearing a face mask and socially distance, even while indoor public spaces.  Some states, including Pennsylvania, have now adjusted their state guidance accordingly.  Nevertheless, the CDC guidance still requires employees to follow their specific workplace guidance on COVID-19, which may include the wearing of masks.  Employers may now review guidance, assess risk, balanced against their unique legitimate business interests, and adjust their COVID-19 prevention plan tailored to their workforce and clientele.   

UPDATED GUIDANCE

The specific language of the new CDC guidance may be found at (LINK HERE).  It refers to updated studies which suggest that fully vaccinated individuals are less likely to experience asymptomatic infection or transmit COVID-19 to others (however, it is still unclear how long the protection of the vaccines will last and how much protection they provide for immune-compromised individuals).  Therefore, the CDC concluded (1) the risk of COVID-19 to fully vaccinated individuals is “minimal,” and (2) the risk of transmission from fully vaccinated individuals to unvaccinated individuals is “reduced” (potentially significantly).  Based upon this, the CDC updated their guidance as follows:

• Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local law (including business and workplace guidance);
• Fully vaccinated travelers do not need a COVID-19 test before or after domestic travel, and do not need to self-quarantine after arrival, unless required by the specific destination;
• Most fully vaccinated individuals will not need to quarantine, be restricted from work, or be tested after exposure to an individual with COVID-19 (unless they develop symptoms);
• Fully vaccinated people with no COVID-19-like symptoms and no known exposure should be exempted from routine screening testing programs, if feasible.

For clarity, an individual is considered “fully vaccinated” two weeks after receipt of the second shot of the Moderna or Pfizer vaccines, or two weeks after the single shot of the Johnson & Johnson vaccine.

Following the issuance of this guidance, some states, including Pennsylvania, adjusted their specific state restrictions accordingly.  The PA Dept. of Health amended its mask order to allow for “no face coverings” for fully vaccinated individuals in non-health care settings (LINK TO PDF HERE).  While other states (such as New York and New Jersey) have yet to specifically adopt the CDC guidance, it may only be a matter of time before they do so. 

REDUCING WORKPLACE RESTRICTIONS

The question for employers is whether to adjust their specific prevention plans.   There is no requirement that an employer must adjust their current COVID-19 prevention plan.  The employer remains responsible for the protection of the health and safety of its employees and potentially liable for possible workers’ compensation and OSHA claims.  OSHA based claims brought during the pandemic alleged that employers violated the General Duty clause and did not provide a safe work environment by failing to follow then current state and federal guidelines.  The important take away from the current CDC and Pennsylvania State guidelines is that employers may impose their own safety mandates.   

Should an employer choose to reduce workplace restrictions for fully vaccinated individuals, it would now appear to have a compelling basis to do so.  In assessing whether to make any change to its COVID-19 prevention plan, the employer should consider the risk to its employees balanced with specific business needs.  As the CDC has determined, because the risk to and posed by fully vaccinated individuals is “minimal,” a reduction in restrictions for this group of people may well be justified where doing so will support the employer’s operations. 

The reduction of restrictions may require determining the vaccination status of employees.  Employers need to be cautious in their approach.  A simple request for proof of vaccination is permissible.   Any inquiry into why an employee might not be vaccinated may spill into medical based questions that may develop into ADA violations.  According to the EEOC, employers may require employees to show proof that they have been vaccinated without engaging in a disability-related inquiry under the ADA (however, it went on to caution employers that subsequent questions, such as asking why an employee may not have received the vaccine may be considered such an inquiry LINK HERE).  Employers must also remember that there are two legally protected reasons for employees to forego vaccination; disability and sincerely held religious beliefs.  If an employee cannot be vaccinated based on one of these two reasons the employer must engage in the interactive process to determine if a reasonable accommodation exists so as to preserve the employment relationship.  Employers should consult qualified legal counsel when considering modification of their COVID-19 prevention plans and addressing requests for reasonable accommodations.

If you have any questions regarding the updated CDC guidance or on potentially altering your own workplace prevention plan accordingly, please contact one of the attorneys in our Employment Law Group at 1-888-488-2638.