To date, the CDC reports there are over 132 million Americans who are “fully vaccinated.”

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) updated its Interim Public Health Recommendations for Fully Vaccinated People, applicable to nonhealthcare settings, providing significant freedom to the fully vaccinated to move around and interact with each other with few restrictions.

Permitted Activities for Fully Vaccinated People

To date, the CDC reports there are over 132 million Americans who are “fully vaccinated.” In its new guidance, based on the growing body of evidence of the reduced risk of vaccinated people transmitting COVID-19 to unvaccinated people, the CDC provides that fully vaccinated people may now:

• Resume all activities, outdoor or indoor, 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 or during visits to correctional facilities and homeless shelters;
• Resume domestic travel without being required to get a SARS-CoV-2 viral test before or after travel (unless testing is required by local, state or territorial health authorities) and without being required to 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 (however, fully vaccinated air travelers coming to the United States from abroad, including U.S. citizens, must have a negative SARS-CoV-2 viral test result or documentation of recovery from COVID-19 before they board a flight to the United States);
• Refrain from testing following a known exposure to someone with suspected or confirmed COVID-19, if asymptomatic, with some limited exceptions for specific settings;
• Refrain from quarantine following a known exposure to someone with suspected or confirmed COVID-19, if asymptomatic; and
• Refrain from routine screening testing if asymptomatic and feasible.

While the new guidance provides increased freedom to fully vaccinated people, the CDC continues to recommend that fully vaccinated people who experience COVID-19 symptoms isolate, be clinically evaluated and get tested for COVID-19. Further, the CDC’s mask requirements related to use of public transportation remain in force.

What This Means for Employers 

As employers consider the return of remote workers to the physical workspace, they are likely weighing the impact of the CDC’s clarification that, in general, fully vaccinated workers no longer need to wear masks during indoor and outdoor activities and whether this gives employers flexibility to implement changes to health and safety protocols.

However, before employers make any changes to their health and safety protocols, they must heed the CDC’s warning to consider applicable state and local laws, including local business and workplace guidance, to determine whether they differ from the CDC’s new guidance.

In addition, even where state and local requirements align with the CDC’s new guidance with respect to fully vaccinated employees, employers must consider the Occupational Safety and Health Act’s general duties clause that requires employers to keep employees safe. Thus, if an employer is in a high risk industry, is operating in an area where COVID-19 infections remain high (or increase in the future) or has an outbreak of COVID-19 in its workforce, it is likely prudent to implement or continue to operate with enhanced safety restrictions, such as masking, social distancing and reduced occupancy.

Moreover, even where COVID-19 conditions have improved and employers are considering relaxing restrictions consistent with OSHA’s reliance on CDC’s new guidance and corresponding state and local guidance, employers have a number of considerations as they return employees to work. In many jurisdictions, there remain varying rules for the fully vaccinated versus those not fully vaccinated, and we await further guidance on what steps employers should take to enforce state and local mask requirements for those who are not fully vaccinated. In the interim, there are a continuum of options, with corresponding legal and business risks and benefits, that employers may wish to consider and review with their counsel.

One of the many considerations employers face is whether to ask employees to provide proof of vaccination status or implement mandatory vaccination policies. In either of these situations, employers may not discriminate against those not vaccinated due to a disability or sincerely held religious belief, unless a direct threat can be established. See our prior Alert for a more detailed discussion of the Equal Employment Opportunity Commission’s recent guidance on mandatory vaccination policies, which highlights the manner in which employers may implement a mandatory vaccination policy without running afoul of the Americans with Disabilities Act and Genetic Information Nondiscrimination Act.

What This Means for Public-Facing Businesses

Businesses that regularly interface with the public have a unique challenge even with the CDC lifting mask requirements for the fully vaccinated and the corresponding changes in many state and local jurisdictions. The CDC has not declared the pandemic over, nor has herd immunity been reached. Similar to employers, it is unclear to what extent public-facing businesses, like stores and museums, must keep their mask policies in place where mask requirements for the unvaccinated have not yet been lifted. While we await further guidance, there are a wide range of options with corresponding risks and benefits for these businesses to consider as they balance the desire to protect their employees and customers while addressing practical enforcement challenges.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Linda B. Hollinshead, Eve I. Klein, Patrick M. Corley, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.