New CDC Guidance on COVID-19 Protocols

May 17, 2021

On May 13, 2021, the CDC issued new guidance regarding the continued use of masks and social distancing indoors and outdoors for employees who are fully vaccinated against COVID-19.  This new guidance does not trump state or local rules, guidance, or orders. Therefore, before you change any policies, be sure you know whether your location has a local difference. Also, as you may know, OSHA previously weighed in on an employer’s duty to protect employees from COVID-19 in the workplace. That guidance is still on the books for now, but OSHA is reviewing the recent CDC guidance. We anticipate an update on the OSHA website soon.

• Based on current guidance from the CDC and the EEOC, employers may allow fully vaccinated employees to resume activities without wearing a mask or physical distancing.  As used here, “fully vaccinated” means a person who has received a single dose of the Johnson & Johnson vaccine or the second dose of the Pfizer-Biotech or Moderna vaccine at least 14 days ago.
• Importantly, businesses are not required to modify their guidance. The CDC guidance is just that – guidance. Employers may also continue to enforce the use of masks and social distancing in order to provide a safe workplace.
• Moreover, there are some important exceptions to the CDC’s guidance. For example, the new CDC guidance does not apply to healthcare settings, the public transportation sector, or schools.
• If an employer decides to drop a mask requirement in the workplace, it can take employees at their word about vaccination status. However, an employer also has the legal authority to require employees to present proof of vaccination.  If an employer wants to review proof of vaccination, it should affirmatively inform employees that they do not need to provide any additional medical or family history information.  Moreover, employers should not ask employees how they fared after their vaccine (especially the dreaded second dose). As harmless as it might seem, some questions could run afoul of some federal antidiscrimination laws.
• Other than requesting proof of vaccination, an employer should not inquire any further into an employee’s health situation or otherwise question an employee’s decision to decline vaccination.  Such inquiries could trigger obligations under the American with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).
• An employer should not retain a copy of the vaccination card to avoid triggering safety recordkeeping obligations. Instead, the employer should create a confidential spreadsheet noting employee name, type of vaccine received, and date of the last dose. The date will be helpful later when it appears likely that booster shots may become a reality. The employer should treat the spreadsheet as confidential medical information and maintain it in a secure area.
• Some employees may have legitimate medical or religious reasons for abstaining from the vaccine.  Consequently, employers must be ready to accommodate abstainers if considering making vaccinations mandatory for the workforce.
• Employees who are unvaccinated, and thus required to continue wearing masks and maintain social distancing, could have a claim for retaliation if they are harassed or discriminated against in violation of federal safety laws or other legal principles. Accordingly, employers should avoid any appearance of retaliatory conduct and encourage/warn all employees to avoid confronting or otherwise questioning any employee who, for whatever reason, continues to wear a mask.
• Finally, an employer may continue to require clients/visitors/vendors to wear masks and follow social distancing practices while on premises.

This guidance is current for today. OSHA has announced that it will be providing additional guidance in the near future, and we expect federal agencies likewise to issue additional guidance. For the most current guidance, employers should access OSHA, EEOC, DOL, and CDC websites on a daily basis.

OSHA — https://www.osha.gov/

EEOC — https://www.eeoc.gov/

DOL — https://www.dol.gov/

CDC — https://www.cdc.gov/

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your situation.

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If you have questions, call Capell & Howard at 334-241-8000 and ask for one of our employment lawyers: Christopher Weller, Brooke Lawson, Carla Cole Penton, or Mai Lan Isler.