Coronavirus in the Workplace

The CDC’s Revised Rules for the Fully Vaccinated: What This Means for Employers

By Fiona W. Ong - Shawe Rosenthal LLP

May 3, 2021

This week, the Centers for Disease Control and Prevention (CDC) further relaxed its COVID-19 protocols for fully vaccinated individuals. Of significance to employers, the CDC continues to assert that such individuals should continue to “[f]ollow guidance issued by individual employers.” But what impact might these looser rules have in the workplace? We had previously offered some guidance the last time the CDC adjusted the rules, and have now updated that guidance.

New Rules. The CDC now says that fully vaccinated individuals (meaning at least two weeks after the second/only required shot for the vaccine in question)  may:

•    Visit with other fully vaccinated people indoors without wearing masks or physical distancing
•    Visit with unvaccinated people (including children) from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing
•    Participate in outdoor activities and recreation without a mask, except in certain crowded settings and venues
•    Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
•    Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States
•    Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings
•    Refrain from quarantine following a known exposure if asymptomatic
•    Refrain from routine screening testing if asymptomatic and feasible

Continuing Rules. In addition to following individual employer guidance, the CDC says that fully vaccinated individuals should continue to:

•    Take precautions in indoor public settings like wearing a well-fitted mask
•    Wear well-fitted masks when visiting indoors with unvaccinated people who are at increased risk for severe COVID-19 disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease
•    Wear well-fitted masks when visiting indoors with unvaccinated people from multiple households
•    Avoid indoor large-sized in-person gatherings
•    Get tested if experiencing COVID-19 symptoms
•    Follow CDC and health department travel requirements and recommendations

What Changes Employers Could Make. Now as to that employer guidance, we had originally offered some thoughts on how it could be adjusted the last time the CDC relaxed its rules. With this new, further loosening, we adjusted some of our guidance – and maintained other parts – as follows:

•    Workspace generally: This hasn’t changed. Realistically at this point, most workplaces will have a mix of vaccinated and unvaccinated individuals, and it is therefore important to continue to maintain all COVID-19 protocols generally, including masking and distancing. However, if all employees in a particular enclosed workspace are vaccinated, and there are no outside visitors (such as clients, customers or vendors) coming into the workspace, those employees need not wear masks or stay at least six feet apart – unless there is a state or local masking mandate that still applies to the workplace (or indoor spaces, more generally). Since  a number of jurisdictions have retreated from these, employers should check to see whether such mandates are in effect for the work location in question.

•    Small group meetings: Just as before, if all participants in a meeting have been vaccinated, they need not wear masks or stay at least 6 feet apart during the meeting. But it would seem that a single unvaccinated person who is not at high risk of severe illness from COVID-19 (or who does not have a household member at high risk) could also attend the meeting – without masks or distancing – if all others are vaccinated.

•    Outdoor work: Based on the new guidance, fully vaccinated employees working outdoors need not wear masks or socially distance from other fully vaccinated employees, unless there is a large group.

•    Lunchrooms: If fully vaccinated employees wish to eat together, they can be permitted to do so. But now, a single unvaccinated, low-risk person could join them.

•    Business travel: Here’s a change – employers can allow fully-vaccinated employees to resume business travel, both domestic and international. Domestic travelers need not test before or after travel, while international travelers must be tested before returning to the U.S., with testing recommended 3-5 days following return. Both domestic and international travelers need not quarantine following travel.  Be aware that there may be additional testing and quarantine requirements imposed by the travel destination or local/state mandates., however. Employers should continue to try to minimize any required travel for unvaccinated employees. Moreover, employers should be thoughtful in responding to employee concerns about required travel – particularly for older employees or those with underlying health conditions, even if they have been fully vaccinated.

•    Exposure to COVID-19: The CDC states that if it’s been more than two weeks since the employee was fully vaccinated, they need not quarantine (for unvaccinated individuals, the quarantine period is at least 7 and up to 14 days).  Exposed, vaccinated employees should still monitor for symptoms. And those in high-density or non-healthcare congregate settings (e.g. meat and poultry processing or manufacturing plants, correctional and detention facilities, or group homes) should still undergo appropriate testing through workplace screening programs.

•    Symptomatic Employees and Those Testing Positive: Of course, if a vaccinated employee develops symptoms of COVID-19 following exposure, they should isolate in accordance with the CDC’s guidelines, seek a medical evaluation, and possibly be tested. Those testing positive should isolate. Because, remember, the vaccine is not 100% – meaning some vaccinated employees will still get COVID-19. Employees with symptoms or who have tested positive may be able to work remotely, or may need leave. If sick leave is available or mandated by state or local law – or FFCRA leave is available and allowed by the employer (through September 30, 2021) – they will be entitled to take such leave during the isolation period.

•    Reasonable accommodations: Vaccinations do not eliminate the need to provide reasonable accommodations, if the employee has a disability. Thus, for example, employers should not be quick to assume that an employee with a condition that put them at higher risk of serious illness from COVID-19 no longer needs to telework following vaccination. Reasonable accommodations should always be considered on a case by case basis, and a disabled employee may still need to telework following vaccination, if the medical provider supports that requirement.

Factors to Consider Before Loosening Workplace Protocols. So, as discussed in an earlier blog post, What to Do About Workplace Masking in the “Open” States, employers may implement and maintain current COVID-19 protocols that exceed what the CDC is recommending.  The CDC notes that there may be higher risk – and consequently employers may wish to implement more stringent safety measures – with the following: higher community transmission rates; settings with more unvaccinated people; indoor settings with poor ventilation; inability to maintain social distancing; and activities that including shouting, physical exertion or heavy breathing,  and the inability to wear a mask, among other things.

Employers should realize that there may be resistance to stricter protocols from some employees, managers, and visitors, and be prepared to address that. Clear and specific communication about what the protocols are and why they are required is helpful. And an employer can usually discipline employees for failing to comply with employer-mandated protocols.

Tweets Follow

May 06

Oregon: OR-OSHA Issues New Permanent Rules for All Workplaces During COVID-19 https://t.co/AccVG34xUm

May 05

Ontario has Introduced Three Days of Employer-Paid (WSIB-Reimbursed) COVID Sick Leave https://t.co/HXza1pNZBG

May 03

The CDC’s Revised Rules for the Fully Vaccinated: What This Means for Employers https://t.co/3G4aaAWOdj