The Road Back – What Employers Need to Know When Planning for a Post-Pandemic Workplace

On May 13, 2021, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance, greatly expanding mask-free activities and limiting social distancing restrictions for fully vaccinated1 individuals (“Updated Guidance”).2 This guidance is based on the CDC’s findings that (1) studies demonstrate that currently authorized vaccines are highly effective at protecting fully vaccinated people against symptomatic and severe COVID-19, and (2) a growing body of evidence suggests that fully vaccinated people are less likely to have an asymptomatic infection or transmit COVID-19 to others.

Under the Updated Guidance, fully vaccinated people can:

• Resume activities without wearing masks or physically distancing (maintaining six feet between people), 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.
• Refrain from quarantine following a known exposure if asymptomatic.
• Refrain from routine screening testing if feasible.

The CDC guidance did not remove its previous requirements that people wear masks and physically distance in specific settings regardless of whether people are fully vaccinated. These settings include: doctors’ offices, hospitals, and long-term care facilities;3 buses, planes, and other forms of public transportation; transportation hubs (e.g., bus stations and airports); and jails/prisons, shelters, and other large indoor spaces that serve potentially vulnerable populations.

The CDC’s updated guidance is very positive news, and it signals that the U.S. is indeed moving toward pre-pandemic circumstances. The Updated Guidance does not, however, change the analysis regarding whether employers can require employees to have COVID-19 vaccinations or testing before returning to work.  Mandatory vaccine and testing rules are still neither required nor prohibited (so long as properly implemented). Vaccines are now available for most adults in the U.S, removing one of the most significant barriers to implementing a mandatory vaccine requirement. On the other hand, vaccines are currently authorized only under an emergency order. They have not yet been fully approved by the Food and Drug Administration, which may raise concerns for employees not yet comfortable getting a vaccine.

Concerning other safety measures, there are several things employers should consider before opening offices or eliminating masks and physical distancing measures. The first is that the Occupational Safety and Health Administration (“OSHA”), the regulatory agency tasked with setting workplace health and safety standards that employers must follow, has not yet updated the COVID-19 related guidance it issued on January 29, 2021.4 OSHA’s January guidance required employers to implement physical distancing, install barriers where physical distancing cannot be maintained, and require employees to wear face coverings, among other things.  OSHA will likely relax these rules for fully vaccinated employees based on the CDC’s Updated Guidance. OSHA has posted a notice on its Updated Guidance webpage referring employers to the CDC guidance for vaccinated people until OSHA can update its guidance.  Twenty-two states also have their own OSHA programs, and some have mask and other requirements that will need to be modified before employers can change their policies.

Employers also need to consider the context of the CDC’s Updated Guidance. The Updated Guidance only covers fully vaccinated people and only applies if state and local guidance orders also allow fully vaccinated people to go without masks. At this time, however, nine states still have COVID-19 prevention measure standards that are stricter than those in the CDC’s Updated Guidance, which is simply guidance and does not overrule these federal or state requirements. For example, while some states quickly dropped their mask and physical distancing mandates after the CDC issued its Updated Guidance (and other states did not even have such mandates), some states kept their mandates and plan to revisit them later. This patchwork of regulatory schemes presents even more of a challenge for multi-state employers and employers with employees who travel to other states on business.
Finally, employees may not be comfortable working without masks despite the CDC’s Updated Guidance. These employees may consider themselves at risk for a myriad of reasons, including increased vulnerability to COVID-19 based on pre-existing health conditions, skepticism toward the efficacy of vaccines, a view that the CDC acted too quickly, or other reasons. Employees, fully vaccinated or not, may be nervous about direct interactions with other employees or customers (who may or may not be fully vaccinated) who do not wear masks. For example, ongoing research indicates that individuals who are immunocompromised, such as people with certain cancers, organ transplants, or autoimmune diseases, are generating fewer antibodies and thus receiving less protection from the vaccines than others.5  In light of these factors, employers must carefully consider whether to change existing safety measures, including personal protective equipment (“PPP”) requirements (such as masks) and physical distancing arrangements. They must also decide whether to mandate that employees receive COVID-19 vaccines, keeping in mind the necessity of accommodating both religious and disability-related objections employees may have. If employers decide not to require that employees receive vaccines, they must consider how to treat fully vaccinated employees versus those who are not fully vaccinated (e.g., requiring employees who are not fully vaccinated to wear masks and maintain physical distancing). While employers most likely can treat those groups differently and request proof of vaccination, they must do so carefully to ensure that they do so without giving rise to discrimination claims.

In conclusion, the Updated Guidance does not reduce the complexity for employers, but it does potentially expand their options. Employers still need to conduct an individualized analysis of their businesses and workforces in the context of the regulations in the locations where they operate and should continue to monitor guidance from federal and state regulatory agencies, especially OSHA, regarding workplace safety measures related to COVID-19.

Employers should be conducting regular reviews of the following:

• Remote work policies and when to require a return to in-person work.
• Implementation of a mandatory vaccination requirement prior to a return to work.
• If a mandatory vaccination requirement is implemented, whether employees will be required to provide proof of vaccination or can simply attest to being fully vaccinated.
• Workplace policies regarding mask requirements, physical distancing measures, and other workplace safety measures such as physical barriers, and whether the policies will differ for those employees who are fully vaccinated.
• Policies regarding COVID-19 testing to return to work or after exposure to another infected individual, and whether the policies will differ for those employees who are fully vaccinated.
• Whether vaccines are required or not, whether it is possible to offer COVID-19 vaccines at the workplace to reduce the burden for employees receiving the vaccine or other incentives to encourage vaccination.
  
  

If you have questions regarding these complicated issues, please call any of the Lawrence & Bundy lawyers with whom you work.

[1] The CDC considers people to be fully vaccinated two weeks after receiving the second shot of the two-dose vaccines (Pfizer-BioNTech or Moderna) or two weeks after receiving the single-dose Johnson & Johnson vaccine.

[2] Interim Public Health Recommendations for Fully Vaccinated People, Centers for Disease Control and Prevention (May 13, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.

[3] The CDC also has issued separate updated guidance that applies to all healthcare personnel while at work and residents while they are being cared for in a healthcare setting. Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19, Centers for Disease Control and Prevention (Apr. 27, 2021), https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html.

[4] Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, Department of Labor, Occupational Safety and Health Administration (Jan. 29, 2021), https://www.osha.gov/coronavirus/safework.

[5] Ariana Eunjung Cha, Coronavirus Vaccines May Not Work In Some People. It’s Because Of Their Underlying Conditions, Wash. Post, (May 18, 2021 at 8:00 a.m.),  https://www.washingtonpost.com/health/2021/05/18/immunocompromised-coronavirus-vaccines-response.