The Centers for Disease Control and Prevention (CDC) has released updated guidance recommending that fully vaccinated persons in areas with substantial or high rates of COVID-19 transmission resume wearing masks in public indoor settings. The guidance also encourages all fully vaccinated persons who are exposed to COVID-19 to take a COVID-19 test three to five days after exposure, and to wear masks in public indoor settings for 14 days or until receiving a negative COVID-19 test. The guidance also recommends universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of their vaccination status.
The CDC’s new recommendations come amid the COVID-19 Delta variant’s contribution to an uptick in case levels nationwide. Although the CDC’s recommendations are not legally binding, they do serve as a helpful reference point for businesses across the country that are developing or evaluating workplace policies.
The CDC’s announcement followed a flurry of activity related to COVID-19 mask policies and vaccination mandates.
In addition, President Joseph Biden is expected to announce on July 29, 2021, that the federal government will require all federal employees to receive the COVID-19 vaccine or submit to regular testing.
As the above timeline demonstrates, things are very much in a state of flux. The Delta variant, CDC guidance, and ever-evolving state and local requirements will have significant impacts on all employers, including those that had recently dropped mask mandates for vaccinated individuals and those planning to reopen their worksites in the fall. Given the current trend, we expect even more changes at state and local levels, and we encourage businesses to monitor these developments closely.
In addition, in light of the new guidance, employers should revisit their protocols for employee exposure to COVID-19 and consider implementing the CDC’s recommendation that all fully vaccinated persons who have a known COVID-19 exposure take a COVID-19 test three to five days after exposure and wear masks in public indoor settings for 14 days or until receiving a negative COVID-19 test.
As for the guidance regarding mask usage, employers may consider varying options to find the best way to implement appropriate safety measures for their businesses. Potential options to consider include but are not limited to the following:
Employers also should review the safety measures in place to protect employees from the spread of COVID-19 in the workplace, especially during the rise of Delta variant cases. This includes testing strategies, social distancing measures, hand hygiene stations, and the enforcement of face covering policies. Further, employers should review state or local laws requiring a comprehensive exposure prevention plan in the event of another designated outbreak (for example, New York’s HERO Act).
Finally, as the CDC continues to advise that the risks of transmission are significantly increased among unvaccinated individuals, employers may also consider implementing a vaccine mandate for employees working at an establishment and restricting entry only to fully vaccinated individuals. All of these approaches have different pros and cons, and there is not a one-size-fits-all approach that will work for every employer. Employers should consult with counsel prior to implementing any specific approach.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Daryl S. Landy
A. Klair Fitzpatrick