CDC Releases New Guidance on Mask Usage Amid Flurry of COVID-19 Activity

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.

Fast-Paced Developments on Masks and Vaccines

The CDC’s announcement followed a flurry of activity related to COVID-19 mask policies and vaccination mandates.

• On July 16, 2021, Los Angeles County announced it was reimposing mask requirements for vaccinated individuals due to increased spread of the virus.
• On July 19, 2021, a federal district judge in Indiana upheld Indiana University’s vaccine mandate for students.
• On July 21, 2021:
  • New York City announced that it would require all health workers at city hospitals and clinics to be vaccinated against COVID-19 by September 1, 2021, or submit to regular COVID-19 testing.
  • Clark County, Nevada (which includes Las Vegas) issued a mitigation plan requiring all employers to ensure that employees wear masks indoors, regardless of vaccine status, and mandating signage encouraging customer compliance with mask mandates.
• On July 26, 2021:
  • The US Department of Justice issued an opinion finding that the Food, Drug, and Cosmetic Act does not prohibit public or private employers from mandating vaccination, including COVID-19 vaccines that were approved by the US Food and Drug Administration under an emergency use authorization (EUA).
  • The US Department of Veterans Affairs (VA) announced that it would make COVID-19 vaccines mandatory for all Title 38 VA healthcare employees.
  • New York City announced that it would require all city employees to receive a COVID-19 vaccine by September 13, 2021, or submit to weekly testing.
  • The State of California said that it would implement a vaccine verification program for all state and healthcare employees—requiring state and healthcare workers to verify their vaccination status by August 2, 2021. Unvaccinated healthcare workers will be required to submit to twice-weekly COVID-19 testing and comply with mask mandates. California also encouraged all local governments and businesses to adopt similar measures.
  • The City of Savanah, Georgia, reinstituted its mask mandate at indoor public places, city buildings, and early childhood centers.
• On July 27, 2021, the governor of Nevada issued an emergency declaration requiring persons 10 years or older in public indoor settings in areas of high or substantial transmission in Nevada to wear masks regardless of vaccination status, effective July 30. Children aged 2–9 are strongly encouraged to wear masks.
• On July 28, 2021:
  • New York Governor Andrew Cuomo announced that all New York State–employed patient-facing healthcare workers must be vaccinated by September 6 and all other state employees either must be vaccinated or must submit to weekly testing.
  • The mayor of Kansas City, Missouri, announced an indoor mask mandate for all persons aged five and older, regardless of vaccination status, in places of public accommodation starting August 2.

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.

Practical Implications

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:

• Requiring all employees nationwide to wear a mask while indoors, regardless of vaccination status or location within a substantial or high-transmission rate area (to avoid having to change mask policies depending on daily transmission levels)
• Permitting employees to work from home until further guidance is released or case counts drop to moderate or low risk levels at employer worksites
• Tracking the data regarding substantial and high-transmission risk zones as posted on the CDC’s website and ensuring that employees comply with the CDC guidance regarding mask usage in those areas

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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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:

Orange County
Daryl S. Landy

Philadelphia
A. Klair Fitzpatrick

Washington, DC
Sharon P. Masling