September 24, 2021

Volume XI, Number 267

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CDC Recommends Everyone Wear Masks in Areas With Substantial or High Transmission of COVID-19

In its latest guidance, the Centers for Disease Control and Prevention (CDC) recommends that everyone — including individuals fully vaccinated with one of the available COVID-19 vaccines — wear masks in indoor public settings in all areas with substantial and high transmission of the COVID-19 virus. It also recommends that everyone get tested following exposure to someone with a suspected or confirmed case of COVID-19.

In addition, the guidance recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.

In its latest Interim Public Health Recommendations for Fully Vaccinated People, the CDC explains that while infections happen only in a small proportion of people who are fully vaccinated (even with the highly transmissible “Delta” variant), “preliminary evidence suggest that fully vaccinated people who become infected with the Delta variant can spread the virus to others.”

In a media briefing, CDC Director Rochelle Walensky explained that the CDC made this decision based on evidence from recent investigations of outbreaks involving the Delta variant, which is now the predominant variant in the United States. These investigations have shown that on the rare occasion a vaccinated individual is infected with the Delta variant, that vaccinated person can have as much viral load as a non-vaccinated individual infected with the Delta variant.

Fully Vaccinated Individuals in Non-Healthcare Settings

The CDC recommends new steps for fully vaccinated people in non-healthcare settings to protect themselves from being infected with the Delta variant and potentially spreading it to others:

  • Wear a mask in public indoor settings if they are in an “area of substantial or high transmission.” The CDC suggests that fully vaccinated people might choose to wear a mask, regardless of transmission level, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease or if someone in their household is unvaccinated. 

  • Get tested 3-5 days following a known exposure to someone with a suspected or confirmed case of COVID-19, regardless of whether they have symptoms, and wear a mask in public indoor settings for 14 days after exposure or until they receive a negative test result.

The CDC continues to recommend that vaccinated individuals isolate and get tested if they experience symptoms of COVID-19 and isolate if they test positive.

Healthcare industry employers should continue to follow CDC’s Healthcare Infection and Prevention Control Recommendations and, where applicable, Occupational Safety and Health Administration’s (OSHA) COVID-19 Healthcare Emergency Temporary Standard.

Data Tracker Shows Areas With Substantial or High Transmission

The CDC’s color-coded COVID-19 Data Tracker shows the level of transmission by county. Red counties have “High” transmission and orange counties have “Substantial” transmission. The Data Tracker is updated daily and is based on total new cases per 100,000 persons in the past 7 days and percentage of positive NAATs (a type of viral diagnostic test) during the past 7 days. As of this writing, 63.45% of U.S. counties have either substantial or high rates of community transmission.

Implications for Employers

The CDC information is just guidance; it does not mandate activity. However, it provides recommendations for individuals and businesses to follow and OSHA and many states base their own recommendations on information from the CDC.

In its guidance for non-healthcare facilities, last updated on June 10, 2021, OSHA relied on CDC’s guidance for fully vaccinated individuals when it concluded that “most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure” and focused its guidance on protecting unvaccinated and otherwise at-risk workers. At that time, the CDC was only recommending that non-vaccinated individuals wear face coverings. Thus, OSHA aligned its guidance with the CDC recommending that unvaccinated and otherwise at-risk workers use face coverings or surgical masks, unless their work tasks require a respirator or other personal protective equipment. Given OSHA’s reliance on CDC guidance for non-healthcare workplaces, OSHA may expect such workplaces to follow the CDC’s new mask recommendations and is likely to update its guidance to once again align with the CDC. Similarly, employers should be prepared for changes to state OSHA directives.

The prevalence of the Delta variant has many jurisdictions reinstituting mask requirements or extending them to cover vaccinated individuals. The recent CDC shift is expected to push others to follow CDC guidance and recommend or require universal masking in indoor public settings in counties with substantial or high transmission rates as shown by CDC’s tracker. Unlike CDC and OSHA “guidance,” some of the state and local recommendations are mandatory. State and local authorities also may adopt the CDC’s view that vaccinated individuals should be tested following exposure to someone with a suspected or confirmed case of COVID-19.

Employers should continue to carefully monitor state and local guidance, as well as the level of transmission in their geographic areas, which is evolving rapidly. The updated CDC guidance is specifically tied to areas that have substantial and high transmission rates. Since those rates are tied to the prior 7-day period, the transmission rates will continue to change for the foreseeable future, especially after holidays, when individuals naturally gather together.

For some employers reinstating mask rules for all employees, regardless of community transmission rates, it may be a preferred approach to minimize change, particularly if they have offices in multiple locations. While this type of administrative ease is tempting, employers should keep in mind that such a policy will be unpopular with employees in areas of the country where vaccination rates are high and transmission rates are low. Currently, 36.52% of the counties in the country have low-to-moderate transmission rates and, according to CDC’s tracker, those transmission rates are decreasing.

Employers choosing to tie their mask rules to the varying transmission rates should be careful in how they communicate any new masking rule, so as to avoid raising fear or distraction every time masking requirements are adjusted due to changes in the local community transmission rate.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 209
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Jenifer Bologna Employment Lawyer Jackson Lewis
Of Counsel

Jenifer Bologna is Of Counsel in the White Plains, New York, office of Jackson Lewis P.C.

Ms. Bologna has extensive experience counseling employers on a variety of employment law issues. Ms. Bologna specializes in assisting employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, the most notable being the Americans with Disabilities Act and the Family and Medical Leave Act. In addition to counseling and training employers, Ms. Bologna represents management in workplace litigation in both...

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Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

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Katharine Weber, JacksonLewis Law Firm, Labor and Employment Attorney
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Ms. Weber has experience litigating wrongful discharge cases; managing discrimination cases; negotiating collective bargaining agreements; representing employers before the Equal Employment Opportunity Commission and other federal, Ohio and Kentucky agencies; advising management on employment relations; drafting employee handbooks; and negotiating severance agreements.

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Tara Burke Employment lawyer Jackson Lewis
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Tara K. Burke is Of Counsel in the Cincinnati, Ohio, office of Jackson Lewis P.C. She works with employers to build positive and inclusive workplaces and reduce legal risk through policy development, training, and employment law counseling.  

Ms. Burke provides practical and legal advice to clients on employment law issues including harassment and discrimination prevention, diversity and inclusion, hiring and interviewing, internal investigations, disability accommodation and leave management, reductions in force, individual separations and employee relations...

513-322-5027
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