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CDC Vaccine Guidance Offers 'Road Map' For Employers

By Vin Gurrieri · 2021-03-10 22:20:14 -0500

Businesses may now have a glimpse into how regulators will eventually ease coronavirus-related health and safety protocols in the workplace following the release of new guidance by the Centers for Disease Control and Prevention that details how people inoculated from COVID-19 can eschew certain precautions in private households.

Although it is still too early for employers to loosen the reins on workplace safety rules, experts say the CDC's March 8 guidance is being closely scrutinized because it's the first time the agency has weighed in on whether people who get the vaccine can pull back on safety measures like mask-wearing and social distancing, which have become staples of pandemic-era life and workplaces.

While the guidance is "cautionary," it still sends a signal that the CDC is "willing to tolerate some degree of risk" to achieve some of the societal benefits that looser restrictions confer, said Michael Jones, an employment attorney with Eckert Seamans Cherin & Mellott LLC.

"I think it's sort of a road map for where the guidance is going to come to be with regard to [return-to-work plans] when you've got much more widespread community vaccination," Jones said. "You can kind of see the rationale behind what the CDC is doing with this guidance and where they've got lingering concerns."

In its March 8 guidance, the CDC defined the term "fully vaccinated" as referring to people who are two weeks clear from having received their final vaccine dose.

Aside from in health care settings, those people can then freely mingle with other vaccinated people indoors without having to don a mask or remain physically distant. They also don't have to quarantine or get tested for the virus after being exposed to it as long as they don't show any symptoms, according to the CDC's guidance, which outlined other recommendations for vaccinated individuals.

However, the CDC suggested that fully vaccinated people continue wearing masks and socially distancing in public settings or when they are around unvaccinated people who are at heightened risk for becoming seriously sick if they contract the virus.

The guidance also said that fully vaccinated, non-health care employees who work in a "high-density environment" — the CDC used meatpacking and manufacturing plants as examples — don't need to quarantine after being exposed if they are asymptomatic. But the agency still recommended that people who fall into that category should be tested or screened for COVID-19 "through routine workplace screening programs" if they've been exposed.

"The benefits of reducing social isolation and relaxing some measures such as quarantine requirements may outweigh the residual risk of fully vaccinated people becoming ill with COVID-19 or transmitting SARS-CoV-2 to others," the CDC said in its guidance. "Additionally, taking steps towards relaxing certain measures for vaccinated persons may help improve COVID-19 vaccine acceptance and uptake."

Carol Goodman, the New York-based chair of Herrick Feinstein LLP's employment department, said that while the guidance wasn't primarily aimed at workplaces and instead focused on small, private gatherings, it may inform how employers approach their current operations or how they craft return-to-work plans since it won't be the last word from public health officials. 

"It doesn't apply to the workplace, but at some point it will because this is simply the first step," Goodman said.

For employers, Goodman noted that the questions arising in the workplace as companies look ahead to more people getting the COVID-19 vaccine have so far included whether safety requirements can be relaxed — "not yet," she said — and whether vaccines can be mandated, to which her answer was "yes, with exceptions."

"I would say that prevention measures should continue as is in the workplace" for the time being, Goodman said.

Eckert Seamans' Jones noted that an "interesting" aspect of the CDC's guidance is how "candid" it was in acknowledging that looser restrictions for vaccinated people come with risk since it still isn't known the extent to which vaccinated people who become infected without showing symptoms can spread the virus to those who aren't inoculated, particularly in crowded environments.

"The way it's going to translate into return-to-work protocols is that once you've got widespread vaccinations, I think the concerns about congregate settings decline," Jones said. "Once the vaccinations are widely spread and there's less fear that you could have this asymptomatic spread continuing with vaccinated people, I think you'll see a lot of these restrictions lifted by CDC in terms of return to work."

But even though the CDC has made its initial thoughts on post-vaccination safety precautions known and potentially signaled to employers what lies ahead, that doesn't mean those guidelines can't change in the future or that states will automatically adopt those recommendations in lockstep. 

While states have by and large tried to line up their policies with CDC recommendations since the onset of the pandemic, there have been numerous instances in which state leaders have decided to carve their own paths, according to Benjamin Kim, who chairs Nixon Peabody LLP's occupational safety and health practice.

For employers, that means keeping the CDC's latest guidance in mind, but being ready to adjust if needed.

"It would not be surprising, and it would not be the first time states departed from CDC guidance," Kim said. "Generally speaking, people have been following CDC guidance and trying to align themselves [with it]. It's possible some states like California could go beyond what the CDC is recommending."

In New York, for example, Herrick Feinstein's Goodman noted that neither the city nor the state have yet updated their guidelines to line up with the CDC's new recommendations, but that she expects them to eventually weigh in.  

"They usually do comment one way or another, so it might be an update or maybe a revised guideline," Goodman said. "Or even a statement that … 'We see that the CDC recommended it but we're not going to change it at this time.' I do expect New York to comment one way or another on some of these relaxed restrictions."

Rachel Conn, a San Francisco-based partner in Nixon Peabody's labor and employment group, noted that the California Division of Occupational Safety and Health has mandates in place requiring workplace social distancing, and that employers "are going to be beholden" to regulations like that where they are in place until any amendments to them are made that address increasingly vaccinated workplaces.  

But regardless of how future guidance and policy decisions pertaining to the vaccinated population shake out either on the state or federal level, employers are already encountering day-to-day issues that they are having to work out.

For example, Conn said she already has had employers ask about situations in which employees seek permission to have in-person meetings if everyone attending is vaccinated given the CDC's latest recommendations.

"Certain issues like that, employers are starting to think through [them] because as these vaccinations become more available, these are the types of questions employers are grappling with," Conn said.

--Editing by Abbie Sarfo.

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