The Centers for Disease Control (CDC) announced on July 27, 2021 that it will adjust its advice to recommend that vaccinated people in substantial or high transmission areas of COVID-19 (defined below) wear masks in indoor public spaces. This guidance will substantially alter the CDC’s May 13 guidance that largely exempted fully vaccinated individuals from the indoor mask requirement. There has been no change in the outdoor masking recommendations at this time. In changing its masking recommendations, the CDC asserts that current scientific information indicates that the delta variant can be spread despite vaccine status, warranting an adjustment to its prior guidance.

Below is a summary of the updated guidance based on the media telebriefing:

• In public indoor settings in areas of substantial or high transmission, all are to wear masks – including fully vaccinated individuals.
• All individuals in K-12 schools must wear a mask, regardless of vaccination status, including teachers, staff, and visitors.
• There should be a continuing effort to strongly encourage vaccination to reduce the spread of COVID-19, including the delta variant.
• Community leaders should encourage universal masking and vaccination nationwide, regardless of whether or not in a substantial or high transmission area.

Despite the updated guidance, CDC Director Dr. Rochelle Walensky emphasized that wearing a mask is a “personal choice” and no “stigma” should attach to the decision whether or not to wear a mask. Moreover, Dr. Walensky acknowledged that the renewed indoor masking requirement would “weigh heavily” with individuals who are already fully vaccinated. The White House has not provided additional comment on the CDC guidance as of this writing.

The definition of a substantial or high transmission area is based on the CDC’s COVID-19 Data Tracker, which tracks the level of community transmission by county nationwide. Notably, the updated guidance does not apply to areas of moderate or low transmission.

While the CDC guidance is not mandatory, employers are advised to evaluate their workplace policies to determine the extent to which it may be prudent to alter workplace masking requirements. Additionally, states and cities are free to institute their own legally binding masking requirements, regardless of the CDC guidance. Employers are advised to closely monitor state and local developments. We also note that it is unclear what, if any, impact the CDC guidance will have on OSHA’s recent healthcare emergency temporary standard for healthcare employers or its enforcement of its safe workplace standards.

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While the CDC cited scientific statistics (the efficacy of the vaccines against illness from COVID-19 and certain variants) as the impetus for expanding maskless activities for vaccinated people, the agency also communicated that it hoped to incentivize more people to get vaccinated. Many employers considering whether to implement vaccine policies are now trying to figure out how the CDC’s newest guidance applies to their businesses.

What Does This New Guidance Mean?

New Jersey

New Jersey has not changed its existing masking mandates indoors where social distancing is not possible, but has relaxed masking requirements outdoors. On May 17th, Governor Murphy issued Executive Order 241, announcing individuals need not wear masks in “outdoor spaces,” regardless of their ability to social distance or vaccination status.1 Yet, the Order also reinforced that the Governor’s prior Executive Order No. 192, which requires individuals to continue to wear a face covering in indoor workplaces, remains in force.

New York

New York State diverged from New Jersey when it announced on May 17th that it planned to adopt the new CDC guidance on mask use and social distancing for fully vaccinated individuals for most business and public settings beginning on May 19th. Citing 52% of New Yorkers over the age of 18 being fully vaccinated, New York has authorized businesses to continue to require masks, but “[i]n most settings, vaccinated individuals will not be required to wear a mask.”2 New York has issued a flyer detailing how businesses in the state should implement the CDC’s guidance. Highlights include the following:

• Fully vaccinated individuals do not need to wear masks or social distance in most settings, including commercial settings. Excluded from this guideline, however, are Pre-K through 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and healthcare settings.
• For businesses that operate with less than 250 persons indoors or less than 500 outdoors, they may require proof of vaccination status, either by paper, digital application, the State’s Excelsior Pass (digital proof of COVID-19 vaccination or negative test results), or the honor system.
• For businesses with more than 250 persons indoors or 500 people outdoors (“large-capacity”), business capacity is no longer limited by any other criteria than the ability of unvaccinated people to remain six feet apart. If all patrons within an establishment (or a separate part of an establishment) are able to present proof of full vaccination, those fully vaccinated individuals need not wear a mask or social distance. Proof of vaccination by the honor system is insufficient in large capacity businesses.
• CDC Guidance Impact on the Workplace

For employers, decisions regarding modifying or eliminating any masking or social distancing policies are dependent on federal, state and local laws and the factual circumstances at those workplaces. With workforces containing both vaccinated and unvaccinated individuals, a changing landscape of official guidance, and the desire of our communities to return to normal, employers still have challenges ahead. Employers need to evaluate their workplace environments and make decisions that promote and protect workplace safety as the guidance evolves. Evaluating remote work policies and crystalizing job roles where a physical presence at the office is necessary are sure to be high on the action items list.

When your jurisdiction allows for a reduction or elimination of indoor masking, preliminary factors to consider when deciding whether to modify your workplace’s masking protocols include:

• The size and layout of the workspace in relation to the feasibility for employees to social distance;
• Whether workers are vaccinated, the percentage of workers who are vaccinated, and/or implementing a vaccination policy;
• How best to obtain vaccination information from employees;
•  The extent to which visitors and/or customers are present who may or may not feel comfortable with a mask free workforce;
• The type of work being done and whether such work is conducive to social distancing;
• The employer’s ability to enforce internal COVID policies and potential consequences for violation;
• For unionized workforces, the obligations of any collective bargaining agreement and/or negotiations over changes to terms and conditions of employment.

Final Thoughts

Employers need to review their policies and ensure communications with employees are clear and consistent with all federal, state, and local rules and guidelines. As with any changes in the workplace, clear communication seeking alignment, understanding, and buy-in from both employees and management in complying with the business’s COVID policies and procedures, with the goal of keeping all employees and visitors to the business safe, remains critical.

© Copyright 2021 Sills Cummis & Gross P.C.

The post Questions Linger for Employers with Regard to COVID-19 Policies appeared first on The National Law Forum.

OSHA IS RESPONSIBLE FOR WORKERS; CDC PROVIDES GUIDANCE FOR THE PUBLIC

The CDC’s mission is to protect the American public from “health, safety, and security threats,”¹ while OSHA’s mission is to “ensure safe and healthful working conditions for workers.”² The Occupational Safety and Health Act (OSH Act) contains a general duty clause, which requires employers to provide workers with a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm. Throughout the pandemic, OSHA has interpreted this clause to mandate the use of masks in the workplace to limit the spread of COVID-19.

Although the CDC’s guidance throughout the pandemic has helped inform many employer decisions, it is important to keep the CDC’s guidance in context. First, the CDC’s guidance is just that—guidance. OSHA, on the other hand, is responsible for enforcing the requirements of OSH Act, promulgates rules and standards, and assesses penalties to ensure compliance with the OSH Act. Second, as noted above, the CDC’s recommendations are aimed at protecting the American public, while OSHA’s rules and standards are designed to ensure employers provide a safe working environment to their employees. While OSHA has apparently endorsed the new CDC guidance, OSHA may publish more detailed guidance concerning the relaxed use of masks for vaccinated individuals in the workplace. Until then, OSHA has not formally removed its most recent COVID-19 guidance for employers published on 29 January 2021, which includes mandating the use of masks by both employees and third parties in the workplace.

STATE AND LOCAL LAW

Many state and local laws, executive orders, and other guidance continue to require masks in the workplace (and inside public places). Indeed, the CDC does not have authority over state or local governments that may impose stricter requirements, and its recent guidance explicitly defers to state and local laws. Importantly, although some State Executive Orders across the country have been changed since the most recent CDC guidance went into effect, some other State Executive Orders remain in effect and some require mask wearing and social distancing. Therefore, employers should consult state and local restrictions before lifting any mask wearing policies.

Further, some jurisdictions also have employer liability statutes and specific workers’ compensation standards that mandate employer compliance with certain health and safety guidelines, which may include state and local regulations. These statutes often provide that when employers adhere to safety standards designed to prevent the spread of COVID-19, the employer is able to limit exposure or reduce liability when and if an employee contracts COVID-19 in the workplace.

INDUSTRY GUIDANCE

Employers must also consider whether the CDC’s new guidance actually changes anything for them, as the guidance does not apply to all industries or to all settings. For example, vaccinated individuals are still required to wear a face covering on airplanes and in healthcare facilities. Employers who work in or regularly interact with these industries should be mindful that requirements may differ. Any changes to a mandatory face covering policy should be made with those considerations in mind.

CONTRACTUAL OBLIGATIONS

In addition to government regulations, some employers may be contractually obligated under a lease or other agreement to maintain a mask mandate, regardless of the new CDC guidance. Therefore, prior to implementing any relaxed mask-related policies, employers should evaluate whether contractual or landlord restrictions may apply. Employers also should consider consulting any applicable insurance policies before modifying mask mandates.

EQUAL EMPLOYMENT OPPORTUNITY CONSIDERATIONS

Finally, the EEOC has not updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (WYSK) to account for the widespread availability of vaccines or the impact of vaccinations on mask wearing in the workplace. However, the current WYSK guidance provides some helpful information for employers considering lifting mask mandates in the workplace. For example, as discussed in our December 2020 alert on workplace vaccination considerations, asking for an employee’s vaccination status is not a prohibited medical inquiry under the Americans with Disabilities Act. Thus, if an employer elects to lift mask restrictions in the workplace, it should consider whether it will require employees to show proof of vaccination before allowing the employee to be present in the workplace without a mask, balancing risk avoidance with considerations of workplace culture and morale. If an employer chooses to require proof of vaccination, such proof should be limited to (i) an employee’s CDC vaccination card and a (ii) corresponding identification card, such as a driver’s license. Further, employers should ensure that employees do not bring an entire medical file or unrelated medical documents as proof of vaccination. Limiting who has access to information regarding employee’s vaccination status is advisable and employers that choose to inquire about vaccination status should develop a written protocol for collecting such information and keeping it confidential. Such employers requiring proof of vaccination should maintain information related to an employee’s vaccination status separate from the employee’s general personnel file. Employers also may consider designating a human resources contact to administer the policy and maintain the list of vaccinated employees.

Keeping anti-discrimination laws in mind, employers should carefully consider how they will enforce a revised face covering policy in a non-discriminatory manner and while awaiting further guidance from the EEOC. Whether or not an employee is wearing a mask may inadvertently reveal the employee’s vaccination status. Thus, the risk for employers will be in how employees are treated in response to unavoidable disclosure. Managers and supervisors should be reminded of company equal employment opportunity policies and should be trained to not exclude masked individuals (or vice-versa) from employment opportunities. While distinguishing between unvaccinated and vaccinated employees may seem non-discriminatory, employers must remember that many individuals will remain unvaccinated because of a medical disability or a sincerely held religious belief and others may simply be more comfortable continuing to wear a mask in the workplace.

KEY TAKEAWAYS

• Employers should consider a number of factors before implementing a revised face covering/mask policy in the workplace.
•  Employers should work with their counsel to ensure their workplace policies are compliant with the OSH Act and all applicable state and local laws, including anti-discrimination laws.
• Employers should expect an increase in employee concerns related to wearing a mask in the workplace and should prepare responses to anticipated questions and develop a plan for messaging the changes to their workforce before making any policy changes.
• Employers should consider requiring proof of vaccination before allowing an employee to go without a mask in the workplace. If an employer chooses to do so, proof of vaccination should be in the form of the CDC vaccine card and government issued identification.
• Employers who are lifting mask restrictions for vaccinated employees should have a clear reporting procedure for employee concerns. Such a reporting procedure should not involve employee-to-employee communications.
• Employers who are lifting mask restrictions for vaccinated employees should consider identifying for employees’ scenarios where mask wearing still may be expected such as visiting customer locations that mandate mask wearing, visiting industries excluded from the CDC’s relaxed mask guidance, traveling and/or meeting with third parties, or attending events (where vaccine status of visitors cannot be ascertained).
• Employers should consider how a revised face covering policy may affect return-to-work plans. Employees, especially those who are immunocompromised or those who have children or individuals who are at high-risk of COVID-19 in their residences, may be more reluctant to return to a physical location with relaxed mask wearing policies.
  Copyright 2021 K & L Gates

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  ARTICLE BY April Boyer, M. Claire Flowers, Rio J. Gonzalez and

  Erinn L. Rigney of K&L Gates

For more articles on CDC mask guidance, visit the NLR Coronavirus News section.

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Per this guidance, fully vaccinated people can now resume most activities without wearing a mask or physically distancing. Unvaccinated people, however, should still consider the risks of particular indoor and outdoor activities now deemed safe for vaccinated people, such as restaurant dining, exercising indoors, or attending a crowded outdoor event, and take necessary precautions.

This is only guidance. Individuals may still be required to wear masks, and businesses may still be required to enforce mask-wearing as required by federal, state, or local law. For example, travelers will still be required to wear masks on all forms of public transportation and in public transportation hubs within the United States.

Additionally, in this latest guidance, the CDC recommended that fully vaccinated people can refrain from testing and self-quarantining before and after domestic and international travel and following a known exposure if asymptomatic, unless the individual lives or works in a high-congregated setting, such as a correctional facility or homeless shelter.

As the country continues to emerge from the pandemic, individuals and businesses should be mindful of this changing landscape as federal and state agencies begin to loosen pandemic requirements. For specific questions concerning national and state COVID-19 legal developments, please contact your Dinsmore attorney.

[1] Guidance for Fully Vaccinated People, Centers for Disease Control, May 13, 2021, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.

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