The Centers for Disease Control and Prevention (CDC) issued public health recommendations for fully vaccinated people that provide guidance on activities these individuals can engage in as well as ongoing precautions of which to be aware. These updates include directions that apply to non-healthcare settings and specifically describe activities that the CDC deems to be low or high risk for individuals who are fully vaccinated against COVID-19. Separate from the CDC guidance, various states are beginning to issue more vaccine-related guidance, including on whether employers can mandate vaccines and whether otherwise applicable quarantine requirements apply to vaccinated individuals, which is in line with prior CDC guidance.
The CDC issued its first full set of public health recommendations for people who are fully vaccinated against COVID-19, and in doing so, specifically stated that this guidance will continue to be updated and expanded based on three factors: (1) the level of community spread of SARS-CoV-2; (2) the proportion of the population that is fully vaccinated; and (3) the rapidly evolving science on COVID-19 vaccines.
For purposes of the CDC guidance, someone is considered “fully vaccinated” two weeks after receiving their final COVID-19 vaccine dose. For individuals who receive the Pfizer-BioNTech or Moderna vaccine, this means two weeks after the second dose of the vaccine, whereas individuals who receive the Johnson and Johnson/Janssen vaccine will be considered fully vaccinated two weeks after they receive the first and only dose.
The CDC provides that fully vaccinated people can do the following:
Most relevant to the workplace, the CDC advises that for now, fully vaccinated people should, among other things, continue to do the following:
In issuing this guidance, the CDC explained that the three currently authorized vaccines in the United States are “highly effective at protecting vaccinated people against symptomatic and severe [cases] of COVID-19.” Additionally, the CDC explained that “a growing body of evidence suggests that fully vaccinated people are less likely to have asymptomatic infection and potentially less likely to transmit SARS-CoV-2 to others.” However, the CDC cautioned that issues such as how long vaccine protection lasts and how much vaccines protect against emerging COVID-19 variants are still under investigation, and noted that “until more is known and vaccination coverage increases, some prevention measures will continue to be necessary for all people, regardless of vaccine status.”
The CDC further explained that fully vaccinated employees of non-healthcare congregate settings do not need to quarantine if they have been exposed to COVID-19 and do not have any symptoms (prior CDC guidance, which remains in place, states that the individual should have been vaccinated within the last 90 days to avoid quarantining in this situation). However, the CDC clarified that it still recommends such individuals undergo testing following an exposure and go through any routine workplace screening program their employer has established.
Following the CDC’s lead, multiple states and localities have issued new orders and guidance addressing vaccinated individuals. Specifically, many places have adopted the earlier CDC recommendation that fully vaccinated individuals who are exposed to COVID-19 do not need to quarantine following exposure. These states include at least California, Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Rhode Island, and Vermont. Some jurisdictions also have revised their travel quarantine guidance to state that individuals entering the state who would otherwise be required to quarantine no longer are required to do so if they have been fully vaccinated. Examples of these jurisdictions include Chicago, Massachusetts, New York State, and Rhode Island.
Notably, at least one state has now issued guidance with respect to whether employers can mandate that their employees receive a vaccine. On March 4, 2021, the California Department of Fair Employment and Housing (DFEH), California’s state civil rights agency, issued guidance that specifically states that employers may require employees to receive an FDA-approved vaccination against COVID-19, which includes all three vaccines that have been authorized thus far.
Similar to the Equal Employment Opportunity Commission’s prior guidance, the DFEH states that mandatory vaccines are only permissible where the employer provides reasonable accommodations related to disabilities or sincerely held religious beliefs or practices. The DFEH guidance further explains that employers may not use a vaccine policy or practice to discriminate against or harass employees or job applicants on the basis of any protected characteristic or retaliate against anyone for engaging in protected activity, such as requesting an accommodation relating to COVID-19 vaccines.
The DFEH guidance also clarifies that if an employer has a mandatory vaccine requirement and an employee refuses to be vaccinated but does not have a disability-based reason or sincerely held religious reason, then the employer does not need to accommodate the employee. As an example, the DFEH states that an employee who objects to receiving a vaccination because they do not trust that the vaccine is safe would not need to be accommodated, and employers can enforce reasonable disciplinary policies and practices regarding vaccination.
The DFEH guidance also provides that where an employer administers a COVID-19 vaccination program, the prescreening questions the employer asks are generally going to be job-related and consistent with business necessity. Finally, the guidance states that employers must maintain any records of employee or applicant vaccinations and prescreening information collected as confidential medical records.
Employers should consider how the new CDC guidance affects their current operations and COVID-19 precautions relating to quarantining, but must remember that the CDC guidance is superseded by any state or local rules regarding COVID-19 precautions. For example, while fully vaccinated employees may want to conduct meetings together without wearing masks, state and local guidance may still require that all such individuals continue to wear masks at all times when interacting with others. Further, employers should consider whether and how to gather and maintain vaccine records from employees before loosening any COVID-19 precautions the employer has in place based on the new guidance.
While the new CDC public health recommendations offer a preview of a return to more regular in-person interactions, we encourage employers to be cautious when removing COVID-19 precautions in the workplace and to carefully consider both legal issues and employee/public relations issues before making significant changes based on the guidance.
Employers may find some relief in the relaxed quarantine requirements for vaccinated individuals. In states that exclude fully vaccinated individuals from quarantine requirements, employers may consider permitting such individuals to resume in-person work based on this guidance. Where the mandatory state and local requirements are silent on an issue or incorporate CDC guidance, then the best practice for employers is to comply with CDC guidance. Employers considering a mandatory vaccine should remain aware of many of the potential issues outlined in our prior LawFlash on vaccine considerations before implementing a mandatory vaccine program.
Finally, employers should continue to monitor CDC and other public health guidance for new updates over the coming weeks and months. For example, the federal Occupational Safety and Health Administration is likely to issue a COVID-19 emergency temporary standard on or before March 15, 2021.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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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:
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Lauren A. West
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Daniel A. Kadish
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Daryl S. Landy
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A. Klair Fitzpatrick
San Francisco
Michael D. Schlemmer
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Sharon P. Masling
Jonathan L. Snare
Kaiser H. Chowdhry