On May 13, 2021, the Centers for Disease Control and Prevention (“CDC”) revised its Covid-19 guidance for fully vaccinated persons. The revised guidance now states as follows:
- If you are fully vaccinated, you can resume activities that you did prior to the pandemic.
- Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.….
- You will still need to follow guidance at your workplace and local business.
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html (emphasis added). The CDC, however, exempted healthcare workplaces from its new guidance and left its most recent guidance for healthcare workplaces issued on April 27, 2021 in place. See https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html. The new guidance further requires even fully vaccinated persons to wear masks on planes, buses, trains, and other forms of public transportation. The Occupational Safety and Health Administration (“OSHA”) has yet to update their Covid-19 related guidance, but it has declared their intentions to do so. In doing so, OSHA has stated that it will follow the CDC’s guidance. https://www.osha.gov/coronavirus/safework. Presumably, if employers adopt policies and practices consistent with the CDC’s new guidance, they will avoid any OSHA compliance issues. A number of states have issued statements to the effect that they endorse the CDC’s new guidance.
Beyond the exemption from wearing masks, the CDC’s new guidance exempts asymptomatic and fully vaccinated persons from procedures required under the CDC’s earlier guidance. First, they no longer need to undergo Covid-19 testing and quarantining after a known exposure to a person infected by Covid-19. Second, screening tests may exempt fully vaccinated individuals. Third, they may travel domestically without testing or quarantine periods. Finally, they can travel internationally without any United States-imposed requirements before or after their trip.
The CDC’s new guidance includes the following definition of a fully vaccinated person. Such an individual must have received either both doses of the Pfizer BioNTech or Moderna vaccination or a single dose of the Johnson and Johnson/Janssen vaccine and a period of two weeks must have elapsed since her or his second dose of a two dose vaccine or the only dose of a one dose vaccine.
As it has in the past, the CDC’s issuance of revised Covid-19 guidance raises new questions for employers to ponder as they implement the revised guidance in their workplaces. On the one hand, it allows employers to choose whether they will continue to require masks and social distancing. On the other, most non-healthcare employers may decide to allow fully vaccinated employees to work in both inside and outside work areas without masks. To implement such a policy change, they must know the vaccination status of their workers. How an employer gathers that information and what it does with it to change its policies and practices in the workplace has legal implications. To avoid liability for violations of employment discrimination and occupational safety and health laws, employers must act both thoughtfully and strategically. The answers to the following questions will help employers to manage their liability risks and to obtain and to document the information that they need to implement the CDC’s revised guidance in their workplaces.
I. Does the CDC’s New Guidance Make State or Local Regulations Requiring Workers to Wear Masks Invalid?
No. If state or local laws, ordinances, orders, or other regulations require mask wearing and social distancing, then they remain in effect and the CDC’s new guidance defers to them. For example, currently, neither Missouri nor the vast majority of its local governments require fully vaccinated persons to wear masks either indoors or outside. https://www.news-leader.com/story/news/politics/2021/04/15/covid-19-updates-where-face-masks-required-mandate-springfield-missouri-mo-vaccine/7189472002/. In Illinois, furthermore, Governor Pritzker revised the mask mandate to make it consistent with the CDC’s guidance effective May 17, 2021. https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2021-10.aspx. Similarly, the City of Chicago also modified its mask requirements to follow the CDC’s new guidance as of May 18, 2021. https://www.chicago.gov/city/en/depts/cdph/provdrs/health_protection_and_response/news/2021/may/Statement_from_CDPH_on_Updated_Mask_Guidance.html. Thus, before an employer changes its policies and practices to follow the CDC’s guidance for fully vaccinated employees in its workplace, it should consult with its labor and employment law counsel for advice as to whether either state or local regulations requiring mask wearing even by fully vaccinated persons remain in effect.
II. Can an Employer Lawfully Ask Whether an Employee Has Fully Vaccinated Status?
Yes. The Equal Employment Opportunity Commission (“EEOC”) issued guidance near the end of 2020 recognizing that employers may ask workers about their vaccinated status without violating the Americans with Disabilities Act (“ADA”). See https://theblogforbusinesslaw.com/what-questions-do-employers-need-to-ask-about-covid-19-vaccinations/. They, however, should limit their questioning to inquiries that require only a “yes” or “no” answer. In addition, employers should avoid any questions that seek information about the reasons for an employee’s negative answer in response to whether he has been vaccinated. An employee’s explanation of the reasons for his non-vaccinated status could cause him to disclose information about a disability, his religious beliefs, or his personal medical history. Generally, the ADA prohibits employers from questioning an employee as to whether she has any disabilities or about the extent of her disabilities, unless she has requested an accommodation. In addition, Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from discrimination on the basis of religion. Absent a work-related reason, employers should avoid posing questions likely to cause employees to disclose their religious beliefs. Similarly, the Genetic Information Nondiscrimination Act (“GINA”) makes employer’s questioning about an employee’s medical history unlawful.
Generally, employers should trust but verify an employee’s acknowledgement of her vaccinated status. They should require such an employee to show the employer a copy of the completed CDC-issued vaccine card or a printout of vaccination status from a health care provider that administered a vaccine. Employers should also keep a record of the proof by either making a photocopy of it or preparing an employer created log that summarizes the information on the employee’s vaccination record. If the employer keeps a copy of the employee’s vaccination record, it should maintain the copy in the same manner as confidential medical information and allow access to such information only to managers and supervisors with a need to know it. In addition, the maintenance of a copy of an employee’s vaccination record likely satisfies the requirements for a medical record pursuant to OSHA’s regulations. See 29 C.F.R. 1910.1020. Consequently, employers must maintain such records for the duration of the employee’s employment plus 30 years.
If an employer creates a tracking system or summary document instead of maintaining a photocopy of an employee’s vaccination record, it can avoid the requirements for medical records under OSHA’s regulations. To accomplish that end, a person other than a physician, nurse, or other health care personnel or technician must make and maintain the tracking system or summary document. The employer, nonetheless, should treat the tracking system or summary document as a medical record for ADA and GINA purposes and maintain it in a confidential manner apart from the employer’s other employment records.
III. Has the EEOC Modified Its Guidance in View of the CDC’s New Guidance?
Yes. The EEOC updated its technical assistance guidance regarding Covid-19 and equal employment opportunity laws again on May 28, 2021. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. This update revisited several issues upon which the EEOC had previously provided guidance in view of the CDC’s May 13, 2021 guidance. Basically, the EEOC confirmed that the equal employment opportunity laws impose no limitation on an employer’s adoption of a mandatory Covid-19 vaccination condition of employment if it also satisfies the reasonable accommodation requirements of the ADA and Title VII. In addition, the federal equal employment opportunity laws permit employers to offer incentives to employees to provide documentation or other confirmation of their vaccination obtained from a third party in the community, such as a pharmacy, health care provider, or public clinic. Employers that receive such information about their employees’ vaccinations must keep it confidential pursuant to the ADA. Employers may also administer vaccinations to their employees and offer modest incentives to encourage them to get vaccinated. Because vaccinations require employees to answer pre-vaccination disability related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. Even very large incentives, however, offered to employees to obtain vaccinations from third party providers raise no issues of coerciveness.
IV. If an Employer Adopts a Policy that Allows Fully Vaccinated Employees to Go Mask-less, Can It Require All Other Workers to Wear Masks?
Yes. The general duty clause of the Occupational Safety and Health Act requires employers to provide to each worker “employment and a place of employment, which are free form recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a) (1). In view of the transmission of the Covid-19 virus primarily through breathing, most employers have implemented policies requiring social distancing and mask wearing in communal areas and shared work areas of an employer’s facility. If such an employer now decides to allow fully vaccinated employees to work without wearing masks, it would still require either unvaccinated workers or those who have not disclosed their vaccinated status to the employer to wear masks and to socially distance in the workplace. In addition, the employer must protect the mask wearing employees from mistreatment by either supervisors or co-workers. OSHA’s existing guidance directs employers to treat unvaccinated workers in substantially the same manner as it treats vaccinated employees. Thus, employers should communicate to all workers that they prohibit any one or more of retaliation, discrimination, or harassment of unvaccinated employees. Similarly, employers must include unvaccinated workers in meetings and social events on the same basis as vaccinated employees.
Conclusion. The Covid-19 pandemic has evolved to the point where effective vaccinations have lessened the need for universal mask wearing. Most view this development as reason for optimism that the pandemic will end or, at least, continue only at a manageable level with marginal impact on workplaces. The CDC’s new guidance exempting fully vaccinated persons from wearing masks either indoors or outdoors in most circumstances offers employers the opportunity to adjust their workplace Covid-19 related policies. For more information about the CDC’s new guidance or its implementation in a particular workplace, please contact Gerry Richardson at (314) 552-4053 or grichardson@evans-dixon.com.
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