In a move that will impact most employer’ COVID-19 workplace practices, the Centers for Disease Control and Prevention (CDC) has chosen to relax its guidelines for masks. The announcement came at the same time when states and localities around the country have been loosening their mask mandates and other restrictions.
Government officials say this is happening because of the recent lowering of Coronavirus infection rates throughout the United States, but the most vocal critics of government restrictions cynically charge that this is happening now only because the midterm elections are just months away.
The new CDC guidance published on Feb. 25 updates its most recent guidelines, which were issued in August 2021. CDC’s guidances have not been mandatory; but are considered only recommendations to be used much like best practices. However, in reality they have much more significance than that. The Occupational Safety and Health Administration (OSHA), for example, uses the CDC guidelines as the basis for enforcement in some circumstances.
“It is worth noting that OSHA’s current COVID-19 guidance references the prior CDC recommendations, and will undoubtedly be updated to conform to the new recommendations,” says attorney Fiona W. Ong of the law firm of Shawe Rosenthal. “Compliance with the CDC’s recommendations clearly establishes that employers are also meeting their obligation under the General Duty clause of the Occupational Safety and Health (OSH) Act to provide a safe workplace.”
The new CDC guidance no longer distinguishes between vaccinated and unvaccinated persons in regard to its masking guidance. In addition, it has revised the metrics by which it evaluates COVID risk. Counties are divided into low, medium and high-risk levels, based on hospitalizations, hospital capacity and total new cases, as shown in the CDC county tracker.
Attorneys for the law firm of Seyfarth Shaw also explain that the agency continues its recommendation of employers relying on “layered prevention strategies,” which include staying up to date on vaccines and wearing masks, to prevent severe illness and a potential strain on the healthcare system.
The centers’ specific masking recommendations for the different levels of community exposure are:
Low COVID-19 Community Level: The guidelines do not recommend masking in any setting, leaving mask use up to the individual at this level. However, the CDC continues to urge employers to stay up-to-date on COVID-19 vaccines and engaging in testing when employees experience symptoms.
Medium Community Level: Those who live in counties who are either immunocompromised or at high risk for severe illness; or who live with someone who is at high risk for severe illness, are urged to continue wearing a mask while indoors in public settings. Employers in this medium level community also should stay up to date on vaccines and test if symptoms appear.
High Community Level: People should continue wearing well-fitting masks while indoors in public, regardless of vaccination status or individual risk. For those who are immunocompromised or at high risk of severe illness, the CDC also recommends wearing a well-fitting masks or respirator.
What Employers Should Do
Shawe Rosenthal attorney Ong warns employers to keep in mind that state and local jurisdictions may still impose restrictions beyond what the CDC is allowing, and it is critically important to check those mandates before taking any of the recommended actions.
In high level counties, where the workplace is also accessible to the public, she recommends that all employees—as well as vendors, clients, or other visitors—should be masked regardless of vaccination status.
In counties with low or medium levels or in non-public workspaces in high level areas, employees also don’t need to wear masks (except when recommended by their doctors). In medium level counties, for employees who are at high risk of severe illness who are in the workplace, employers may want to require masking and social distancing protocols in common areas.
When it comes to outdoor work, masks don’t appear to be required regardless of the county risk level or employees’ vaccination status, according to Ong.
In addition, in workplace lunch or breakrooms in low and medium risk counties, employees may be allowed to eat together, regardless of vaccination status. Although eating and drinking is one of the identified exceptions to OSHA’s workplace masking guidance, employers in high risk counties may wish to either prohibit communal eating or to require social distancing during the shared mealtime, she says.
Employees also may be allowed to engage in business travel, both domestic and international. However, for those who are not fully vaccinated and have been in close contact with a COVID-positive individual, she suggests they should not travel for another five days following their recommended five-day quarantine period.
Domestic travelers do not need to be tested before or after travel, while international travelers must be tested within 24 hours before returning to the U.S. 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,” Ong stresses. “In addition, 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.”
If it has been more than two weeks since the employee was fully vaccinated or if they had a test-confirmed COVID infection within the past 90 days, they need not quarantine. A test is recommended for vaccinated employees at least five days following exposure (although those who have had a COVID infection need not test).
Unvaccinated or partially vaccinated individuals should quarantine for at least five days with testing recommended after five days. All regardless of vaccination status should monitor for symptoms and should wear a mask for 10 days following exposure.
Because the vaccine is not 100% effective, some vaccinated employees will contract the virus. If an employee develops symptoms following exposure, they should isolate according to CDC guidelines, seek a medical evaluation, and be tested.
Those testing positive should isolate. Employees with symptoms or who have tested positive may be able to work remotely or may need leave. Ong also notes that if sick or COVID leave is available or mandated by state or local law, they will be entitled to take it during the isolation period. Also be prepared to offer reasonable accommodation for those who have disabilities.
“Employers should realize that there may be resistance to stricter protocols from some employees, managers and visitors, and be prepared to address that,” Ong says. “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 stricter employer-mandated protocols.”
