CDC GUIDANCE FOR FULLY VACCINATED INDIVIDUALS: CONSIDERATIONS FOR EMPLOYERS
Under the updated CDC guidance:
Fully vaccinated people can:
- Resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.
- Resume domestic travel and refrain from testing before or after travel or 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 (residents or employees of a correctional or detention facility or a homeless shelter).
- Refrain from quarantine following a known exposure if asymptomatic.
- Refrain from routine screening testing if feasible.
Fully vaccinated people should continue to:
- Be tested if experiencing COVID-19 symptoms (identified as fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting and/or diarrhea).
- Isolate themselves from others if experiencing COVID symptoms.
- Monitor for symptoms for 14 days (but no need to quarantine, test or be restricted from work) if exposed, but not experiencing symptoms. However, testing remains recommended for residents and employees of correctional and detention facilities and homeless shelters.
- Follow CDC and health department domestic and international travel requirements and recommendations.
- Visit private or public settings if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms.
Fully vaccinated people should not:
Regardless of vaccination status, all individuals must wear a mask on all planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations.
The CDC’s updated guidance applies to fully vaccinated people. Fully vaccinated is defined as two weeks after the second dose of the Pfizer and Moderna vaccines, or two weeks following the single dose of the Johnson & Johnson vaccine.
While the CDC guidance essentially means vaccinated persons can resume many pre-pandemic activities without socially distancing or wearing a mask, many employers remain subject to local and/or state restrictions and guidelines. Some local and/or state mask mandates or other restrictions may remain in effect despite the updated CDC guidance. Moreover, OSHA’s “general duty of care” requirement (obligating employers to furnish employees a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm) remains in place. Currently, OSHA guidance states that employers implement physical distancing, install barriers, use PPE, perform routine cleaning and provide supplies for hand sanitization, among other steps. While OSHA posted a statement on its website acknowledging the CDC’s updated guidance, indicating it is reviewing the CDC guidance and will update its materials accordingly, it has not yet done so. Instead, OSHA states that until such updates are complete, employers should refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.
Employers are left to navigate updating and/or altering their COVID-19 workplace policies in light of the CDC guidance, but with little guidance from OSHA or other government agencies as to how to manage an environment where some employees, as well as visitors, are not vaccinated.
So, what is clear?
Employers can ask if employees are vaccinated. However, the EEOC cautions employers against asking follow-up questions which could elicit information about a disability under the Americans with Disabilities Act (ADA). The EEOC provides through its COVID-related guidance that asking if an employee is vaccinated is not a disability-related inquiry. However, subsequent questions such as asking why someone is not vaccinated may elicit questions about a disability and is subject to the “job-related and consistent with business necessity” requirement for making a disability-related inquiry. If an employer requests proof that an employee is vaccinated, the safest avenue is to ask employees to provide their vaccination card. When conducting vaccination surveys, employers should warn employees not to provide any medical information—only indicating whether they are vaccinated and/or provide their vaccination card--in order to avoid implicating the ADA or the Genetic Information Nondiscrimination Act (GINA).
Employers can require employees to be vaccinated, except where state law prohibits doing so. Several states, including Nebraska, have pending legislation that prohibits requiring vaccinations or taking adverse action against an employee based upon immunization status. Employers need to ensure compliance with state law when making vaccination decisions. Even where there is no law governing the issue, there are additional nuances to consider in deciding whether to mandate vaccination. The COVID-19 vaccines are emergency use authorized, and while there are studies indicating the safety of them, there remains a degree of unknowns as to long-term impact, whether booster shots will be necessary and potential side effects. Where employers require a vaccine and an employee suffers an adverse reaction, such may be a reportable workplace injury and lead to workers’ compensation liability. Employers should evaluate whether they are comfortable accepting these risks when considering mandating a vaccine. Moreover, if mandating a vaccination, an employer needs to consider who pays for it and whether time spent getting the vaccine and/or recovering from it is compensable time under the FLSA and/or other applicable law. Employers mandating the vaccine must also be prepared to provide reasonable accommodations for employees who object to the vaccine based upon sincerely held religious beliefs or who cannot get the vaccine due to disability-related reasons.
For these reasons, the EEOC recommends and employers should consider encouraging or incentivizing vaccination, rather than requiring it. Of course, certain employment settings, such as healthcare or residential settings have significant reasons for requiring vaccines that may not exist in other workplaces. These decisions should be evaluated on a case-by-case basis grounded upon business necessity and employee safety. An employer who elects to incentivize vaccinations, needs to ensure compliance with EEOC guidelines regarding employee wellness plans pursuant to the ADA.
The CDC Guidance only applies to fully vaccinated people. If an employee has not been vaccinated at all, or remains within the two-week window following vaccination, the CDC guidance indicates the employee should continue to follow federal, state and local recommended or required prevention practices and restrictions, including socially distancing, wearing a face mask, avoiding close contact with others, and isolating if exposed, testing positive or suffering symptoms.
The Updated CDC Guidance provides an exception where laws, rules, and regulations require wearing masks and physically distancing. The CDC guidance says fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. The new CDC guidance may not completely align with current local restrictions or workplace guidance. If that is the case, people should follow the most restrictive rules and regulations, including directed health measures.
The CDC guidance is encouraging and another step toward returning to pre-pandemic lifestyle. However, making workplace changes based upon the guidance requires a balance of employee relations considerations, as well as safety and legal requirements. Employers who are considering adopting or updating their existing COVID policies based upon the updated CDC guidance by relaxing restrictions or creating policies that apply to unvaccinated employees or visitors, should consult with employment counsel to discuss options and risks.
The CDC updated guidance can be found at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.
CDC Guidance related to international travel can be found at https://www.cdc.gov/coronavirus/2019-ncov/travelers/international-travel-during-covid19.html.
OSHA guidance can be found at https://www.osha.gov/coronavirus.