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CDC's About-Face On Masks Puts Employers In A Bind

By Vin Gurrieri · May 14, 2021, 10:16 PM EDT

The Centers for Disease Control and Prevention said Thursday that people who are fully vaccinated against COVID-19 can sidestep most mask and physical distancing requirements, a position that experts say creates more questions than answers for employers looking to ease their pandemic safety rules.

In its new guidance, the CDC said that people who are fully vaccinated — meaning they are two weeks removed from their final vaccine shot — don't have to wear a mask or physically distance indoors or outdoors save for certain exceptions so long as no laws require otherwise.

Additionally, vaccinated people don't have to undergo COVID-19 testing after they have been exposed to the coronavirus in most circumstances and don't have to quarantine following exposure if they don't display symptoms of illness, according to Thursday's guidance.

While the new guidance opens the door to loosening mask requirements and other precautions for workers and customers, management-side lawyers say it leaves employers to figure out how to balance different sets of rules and requirements based on whether people are inoculated.

"This is all coming from a good place, but I think it's going to be challenging to navigate through this," said Jeffrey Gilbreth, a Boston-based partner at Nixon Peabody LLP. "I think the goal is getting to a place as a society where the CDC is issuing guidance that is generally applicable — vaccinated or unvaccinated — about not wearing masks … but until we get there, [this] sort of bifurcation can be a challenge."

Brett Coburn, a partner in Alston & Bird LLP's Atlanta office, noted that management-side attorneys have been advising employers since the pandemic began to tie their policies to CDC guidance, which is why the agency's latest recommendation is so significant.  

"This guidance from the CDC certainly will give employers in jurisdictions that don't have independent mask requirements a pretty high degree of comfort that if they want to proceed with allowing fully vaccinated employees to remove their masks in the workplace that they can do that," Coburn said.

Will States Follow Along?

While the CDC has served as a guidepost for employers over the past year, many state-specific rules have been adopted for how workplaces should safely operate. So, before employers adjust their policies to match the CDC's newest guidelines, employers have to know exactly how far public health officials in their state will let them go since nothing will really change until local restrictions are lifted, attorneys say.

Coburn, for one, said that businesses can't point to the CDC's guidance as a way of skirting existing state rules.  

"If you are in a jurisdiction — state or local — that has a mask requirement, an employer needs to continue to follow that unless and until it is rescinded or changed," Coburn said. "The CDC, they don't make laws, they provide guidance. To the extent there's a conflict between a state or local mask requirement and what the CDC has said, absolutely you've got to keep following what the law is in that jurisdiction."

Some states, like Texas for example, had lifted all mask-wearing mandates well before the CDC's new guidance was issued. Conversely, New Jersey Gov. Phil Murphy said Friday that the state isn't ready to adopt the CDC's stance quite yet and lift its current mask mandate.

Besides considering state and local requirements in light of Thursday's CDC guidance, employers will have to square the CDC's guidance with directives from the Occupational Safety and Health Administration, the U.S. Department of Labor subagency that oversees workplace health and safety, according to Fisher Phillips partner Kevin Troutman. 

While the guidance "represents a positive step" for employers that want their workplace to return to its pre-pandemic normal, the CDC's guidance is intended "for the general public" and isn't the only authority for employers, according to Troutman, who leads the firm's vaccine work group.

"OSHA provides guidance and [oversight] — and has enforcement authority regarding the workforce and employees," Troutman said in a written statement. "Thus far, OSHA has said that fully vaccinated workers should not be treated differently than masked workers in terms of COVID protocols. CDC guidance does not override OSHA or state or local rules that are in place. So even though OSHA may take note of CDC guidance, their statements thus far do not dovetail with the CDC. Employers must evaluate all these factors in determining what the guidance means for them."

Patricia Anderson Pryor, a principal at Jackson Lewis PC and member of the firm's disability, leave and health management practice, said that while the new guidance "provides employers with options" if they want to change existing policies, employers having to juggle different requirements has been a problem throughout the pandemic.

"If they're in a state that still requires masks or one of the states that has a mini-OSHA or has issued an emergency temporary standard under the OSHA, they still have to follow it," Pryor said. "Just because the CDC has said vaccinated people don't need to wear masks doesn't mean employers can allow them to not wear masks in those jurisdictions which require it."

Will Workers Balk If Employers Reject CDC's Stance?

Even if no state or local rules get in the way of employers' review of mask or other safety policies, they may still not be ready to tell workers to pull the masks off just yet, especially since nothing prevents an employer from exceeding minimum government safety mandates.

Nixon Peabody's Gilbreth noted that some employers may not have the desire or even the bandwidth to create and enforce different rules that are based on workers' vaccination status. So, one option for those companies will be to just continue treating everyone as if they aren't vaccinated, at least for the time being.

But that approach could put employers in a tricky position that will likely engender pressure from workers and patrons to change course.

"I think that's going to be pretty daunting for employers to take that position because I think employees that are vaccinated are not going to be happy with that [and] customers are not going to be happy with that," he said.

How Will Having Two Sets of Rules Work in Practice?

If employers do opt for two sets of rules for vaccinated and unvaccinated people, that will create a different set of issues to confront, including how to make sure that the rules are being followed. Their options may include asking workers to attest in some way to their vaccination status and trusting that they are being honest, or proactively seeking proof of vaccination.  

The approach that an employer picks, Coburn said, may hinge on the type of workforce it has and the industry it operates in. For example, in a professional white collar setting, employers may have a "high degree of trust" that workers will honestly adhere to a rule that employers adopt that tracks the CDC's guidance without additional policing.

"Obviously if they get word that there is someone who not fully vaccinated [and] not wearing a mask, you need to be ready and have a process in place to look into those [situations] and deal with them," Coburn said.

But employers may ultimately be pushed toward a "trust but verify" model since people may leave their jobs or customers may take their business elsewhere if they become upset that the company isn't going far enough, according to Gilbreth.

"There may be some pressure from the workforces to really take that extra step to verify," Gilbreth said. He noted that employers could be stuck in the middle if some workers don't want to share their vaccination status because they believe it to be private health information and others want their employer to verify vaccination status because of the potential danger for the workforce at large. 

"Both sides have valid arguments there," Gilbreth said. "It's going to put some employers in a challenging place."

How Private Should Workers' Vaccine Documentation Be?

If employers do opt to require proof of vaccinations, that comes with its own legal issues that employers will have to untangle. Among them is the extent to which documentation that workers submit is kept private and how employers even obtain that information.

In December, the U.S. Equal Employment Opportunity Commission issued vaccine-related guidance that said businesses can make workers prove they were inoculated against COVID-19 since it isn't an inquiry related to a person's disability and "is not likely to elicit information about a disability."

The Americans with Disabilities Act places limits on employers' ability to make workers take medical tests or otherwise seek out medical information about them.

But the agency warned that certain follow-up questions by employers could run afoul of the ADA if they do seek that kind of information. An example of one such query that the EEOC included in its guidance is if an employer asks a worker why he or she hasn't been vaccinated.

Coburn said the EEOC guidance is clear in directing employers that seek proof of vaccination to avoid follow-ups that could transform a non-disability-related inquiry into one that is. 

"Employers should certainly just be asking the binary question: 'Are you fully vaccinated or are you not?' And there may be a third piece, 'If you're not fully vaccinated, do you intend to be?'" Coburn said. "But you certainly don't want to ask why someone is not fully vaccinated. … The employer wants to just have proof that they're vaccinated. Period, end-stop, no additional information."

But the commission wasn't entirely clear about whether information about a worker's vaccine status amounts to confidential medical information that is protected under the ADA, Coburn said.

Until the EEOC updates its guidance, if it even chooses to do so, Coburn said "the conservative approach" is for employers to handle a worker's CDC vaccination card or other proof that they were inoculated as confidential medical information that is held separate from a person's personnel file and isn't shared widely within a company.

Jackson Lewis' Pryor similarly highlighted the need for information about vaccination status remaining confidential, saying open disclosure of it could result in unvaccinated people left feeling as if they're being targeted.

"There is some concern about having individuals who are unvaccinated suddenly become like they're marked with a scarlet letter because there are protected reasons why people might not be vaccinated at this time," Pryor said.

--Editing by Abbie Sarfo.

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