Yesterday, the Centers for Disease Control and Prevention (CDC) released new guidance stating that “fully vaccinated people no longer need to wear a mask or physically distance in any setting,” except where required by state or local law, including “local business and workplace guidance.” An individual is considered “fully vaccinated” two weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna) or 2 weeks after they have received a single-dose vaccine (Johnson & Johnson). The new guidance is available here.
Then, late yesterday, Gov. Walz followed suit, announcing that he would issue an executive order lifting the state’s state-wide masking mandate and asking only that “Minnesotans who are not fully vaccinated are strongly recommended to wear face coverings indoors.” In his announcement, however, Gov. Walz made clear that “private businesses and local municipalities may still put in place face covering requirements.” Indeed, Minneapolis and St. Paul have committed to keep their masking ordinances in place and some employers, like Target, have announced that they will keep masking requirements in place.
These new rules regarding fully-vaccinated individuals unfortunately create more questions than answers as they are interpreted by employers throughout the country. And, while answers will become clearer in the coming days, here are some of the biggest questions facing employers in light of this new guidance.
FAQ#1—Does This New Guidance Affect Healthcare Employers?
No. The CDC guidance makes clear that its revised “recommendations apply to non-healthcare settings.” Healthcare employers should continue following the CDC’s “Healthcare Infection Prevention and Control Recommendations,” which were last updated on April 27 and are available here.
Likewise, Gov. Walz made clear that “Minnesotans should follow CDC guidance and wear masks in medical settings and on public transportation, whether or not they are fully vaccinated.”
FAQ#2—If I require workers to wear masks, can my employees tell me that they’re no longer going to wear masks?
No. Employers are free to continue to require workers to wear masks and practice social distancing. The revised CDC guidance and Gov. Walz’s announcement do nothing to preclude employers from promulgating and enforcing safety rules. Failure by employees to obey employer rules should be managed like any other performance issue.
In fact, as noted below, the Occupational Safety and Health Administration (OSHA) has not issued revised guidance incorporating the new CDC guidance on masking, so employers would be best served to wait until OSHA adopts the latest CDC guidance before making changes to their safety and social distancing protocols.
FAQ#3—What if I want to follow the new CDC guidance and allow my fully-vaccinated workers to remove their masks?
This is a difficult question and there are a number of issues to consider. First, the new CDC guidance makes clear that the loosened restrictions on masking does not supplant “local business and workplace guidance.” Thus, local mandates, like those in Minneapolis and St. Paul would continue to apply to businesses.
Second, as noted above, OSHA has not issued revised guidance incorporating the new CDC guidance. Instead, the most-recent OSHA guidance, which was released in January 2021, suggests that workers should continue to wear face coverings, even after becoming fully vaccinated:
Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
(Available at: https://www.osha.gov/coronavirus/safework). Importantly, though, because OSHA’s guidance expressly incorporates the CDC’s guidelines on masking, it is likely that OSHA will revise its guidelines to align with the CDC’s belief that fully-vaccinated individuals should be subject to fewer masking and social distancing restrictions. But, until the guidance is revised, employers may wish to continue following the current guidance until it is updated.
Finally, there is a practical issue of whether you can (or should) confirm that employees are, in fact, fully-vaccinated. The safest approach would be to verify the employee’s vaccinated status because, if an unvaccinated employee infected a coworker, customer, or client, the employer could be alleged to be negligent in allowing its workers to discard their masks without confirming. If you do confirm vaccinated status, you should follow the EEOC guidance on not asking for additional medical information or asking an employee “why” the individual is not vaccinated.
The latest CDC guidance suggests that fully-vaccinated workers may be given more freedom for removing their masks. But, employers may still be subject to local masking mandates that are not affected by the CDC’s revised guidance or Gov. Walz’s announcement. In addition, because OSHA’s guidance has yet to be revised, employers may need to wait for revised OSHA guidance before making changes to their safety and social distancing protocols.
If you do want to follow the new CDC guidance regarding allowing fully-vaccinated employees to work without a mask, it is advisable to consider confirming that the employee is, in fact, fully-vaccinated. This process, though, is also ripe with pitfalls, so be sure to limit your inquires to whether the employee received the final dose more than 14 days ago and, if they haven’t, not asking “why” or otherwise seeking additional medical information.
We will continue to monitor this issue as it develops.