What Does the Updated CDC Guidance Mean For Employers? (July 29, 2021)
On July 27, the Centers for Disease Control and Prevention (CDC) issued updated guidance, recommending that even fully-vaccinated individuals should wear masks indoors in geographic areas of “substantial or high transmission.” The change is based on new evidence regarding the Delta coronavirus variant currently circulating in the United States. The CDC also recommends fully-vaccinated people get tested and wear a mask in public indoor settings for 14 days if they have had a known exposure to someone with suspected or confirmed COVID-19 or until they receive a negative test.
Of course, the CDC does not directly regulate employers — it offers recommendations and guidance. Employers should recall that on June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) and related guidance. With certain exceptions such as healthcare, OSHA stated in their Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace:
“Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.” (www.osha.gov/coronavirus/safework.)
OSHA went on to address steps for employers to protect unvaccinated or otherwise at-risk workers in their workplaces. So far, OSHA has not retracted that Guidance from June 2021, but in it, OSHA relied in large part on the previous guidance from the CDC, which has now been “updated” as noted above. In response, OSHA just recently added the following statement to its website:
The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully-vaccinated workers.
With respect to healthcare settings, “OSHA has determined that no changes to the ETS are necessary at this time” but OSHA will continue to monitor. Whether OSHA will follow the CDC’s path is not known, but employers should remain mindful of the general duty clause under OSHA to provide a safe workplace, as well as the previous guidance from the EEOC regarding these issues, including mandatory vaccines in the workplace. (www.eeoc.gov/wysk what-you-should-know- about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws). In those areas of substantial or high transmission of COVID, employers should keep abreast of any changes in local or state policies and orders regarding masks for even the fully vaccinated, and be prepared for possible adjustments with respect to mask policies. The updated CDC guidance may be accessed on their website as follows: www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.
Our attorneys can assist with questions on these issues. Be sure to watch our Firm website for further updates, at www.wimberlylawson.com.