CDC Updates Guidance to Permit Vaccinated Workers to Remove Masks in Most Indoor Settings

The Centers for Disease Control and Prevention (CDC) updated its guidance for fully vaccinated individuals on May 13 to state that “fully vaccinated people no longer need to wear a mask or physically distance” in most settings, subject to applicable law or workplace guidance.

The CDC’s new guidance says fully vaccinated individuals can safely forgo masks and social distancing requirements in most indoor locations. It also says fully vaccinated persons can safely refrain from quarantine if asymptomatic and routine screening requirements, if feasible. The CDC was careful to note, however, that vaccinated individuals should continue to wear masks if required by federal, state, or local rules, including workplace guidance implemented by employers.

This policy change is due to new information showing reduced risk of COVID-19 infection in vaccinated individuals and reduced risk of transmission from fully vaccinated persons to unvaccinated persons.

The CDC recommends that unvaccinated persons continue to wear masks and social distance.

Analysis

CDC guidance are recommendations and are not legally binding. Businesses should continue to require masks and social distancing if federal, state, or local laws mandate or recommend them. Under the CDC guidance, however, businesses can:

• allow fully vaccinated persons to stop wearing masks indoors, practicing social distancing, or undergoing screening procedures like temperature checks. Unvaccinated persons should continue to wear masks, practice social distancing, and participate in workplace screening, such as symptom screening or testing. Our understanding of the CDC guidance is that workplaces with a mix of vaccinated and unvaccinated persons can operate safely while allowing those individuals who have been vaccinated to forgo masks and social distancing. This recognizes the reduced risk of transmission from vaccinated to unvaccinated persons and the lower risk of COVID-19 in vaccinated persons.
• ask about employee vaccination status and request proof of vaccination. We recommend, however, that employers treat the information as confidential medical information. Local privacy laws may require additional notices to employees related to the requests. Employers may consider requesting proof of vaccination, rather than simply accepting an employee’s statement that they are vaccinated.
• use vaccination status to guide employee access policies to buildings, workspaces, and events. However, employers must continue to consider employee requests for accommodation to these workplace policies, including access policies, made by persons unable to receive a vaccine due to a medical condition or sincere religious belief because these are protected by the ADA and Title VII, respectively.
• ·voluntarily choose to require masks and social distancing for workers if they prefer (which businesses may do based on ease of administration, or concerns from employees or the public regarding transmission of COVID-19).

We anticipate that many jurisdictions will update current requirements in light of the CDC’s new guidance, and in fact, a number already have done so. However, governors from several states quickly announced that vaccinated individuals should continue to wear masks indoors in shared spaces as they consider the new guidance from the CDC. Business should also monitor any new standards or guidance from the Occupational Safety and Health Administration (OSHA) on this topic. Finally, we recommend that employers train managers on how to communicate with employees about vaccine status issues.

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CONTACTS

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:

Philadelphia
A. Klair Fitzpatrick

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Sharon Perley Masling