On May 13, 2021, the Centers for Disease Control and Prevention (“CDC”) announced that fully vaccinated individuals no longer need to wear a mask or practice social distancing in any setting. Specifically, fully vaccinated people can now:
Resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance;
Resume domestic travel and refrain from testing before or after travel or 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;
Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings;
Refrain from quarantine following a known exposure if asymptomatic; and
Refrain from routine screening testing if feasible.
In general, people are considered fully vaccinated:
Two weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
Two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.
Individuals who do not meet these requirements, regardless of their age, are NOT fully vaccinated, and are instructed to keep taking all necessary precautions until they are fully vaccinated. Further, for now, fully vaccinated people should continue to get tested if experiencing COVID-19 symptoms and should follow CDC and health department travel requirements and recommendations.
Although this return to some semblance of normalcy is a relief after over a year of lock-downs and restrictions, the lack of clarity surrounding the CDC’s guidance has left many employers questioning how they should approach this issue. Should employers require proof of vaccination by requiring employees to show their vaccination cards before allowing employees to go mask free? Or, should employers rely on an “honor system” in which they trust that their employees are being truthful about their vaccination status, without requiring proof?
The answers to these questions will vary based on the individualized needs and circumstances of each employer, but the Equal Employment Opportunity Commission (“EEOC”) has specifically stated that employers may inquire about employee vaccination status without violating the Americans with Disabilities Act (“ADA”). Specifically, employers are legally allowed to request proof of vaccination, such as by requiring their employees to provide a copy of the completed CDC-issued vaccine card or a vaccination status printout from the health care provider that provided a vaccine. Such a request, on its own, is unlikely to reveal information about a disability, and is therefore not a prohibited disability-related inquiry. Accordingly, reading the CDC and EEOC guidance together, employers are able to require employees to provide proof of vaccination, with dates of the final shot in a 1- or 2-shot series, in order to be relieved of the requirement to wear a mask while indoors. Employees who refuse to mask-up without proof of vaccination may still be subject to disciplinary action absent an accommodation.
Moreover, employers may consider loosening business travel bans with proof of vaccination, but for those who cannot be vaccinated for health reasons, employers should continue to consider whether business travel can be done safely to avoid any claim that individuals with health, disability, or religious reasons for not receiving the vaccine at all or right away are losing opportunities for compensation or advancement as a result. Moreover, it is important for employers to emphasize that there is nothing stopping employees from continuing to wear a mask if they prefer, and employees should not question, make assumptions about, or harass their coworkers for wearing (or not wearing) a mask.
No matter their chosen method of tracking vaccination status, before lifting any safety requirements, employers should ensure that they are collecting accurate and reliable data regarding which employees have received the vaccine, and they should coordinate these efforts with Human Resources, and Environment, Health, & Safety personnel to ensure the proper collection and storage of employee health information as required under the ADA, Occupational Safety and Health Act, and state laws. Employers requiring proof of vaccination from employees should develop a written policy for collecting the information and maintaining confidentiality by limiting access to the data to individuals who have a legitimate business need to know such information.
With all that said, it is important to note that there have been multiple proposed bills introduced in state legislatures throughout the country that would prohibit employers from requiring proof of vaccination status for employees to return to work and in other circumstances, so employers should consult applicable state and local law before implementing such policies.
In the alternative, employers who do not wish to require proof of vaccination can rely on an honor system or a signed attestation in which employees represent their vaccination status without providing proof. However, relying on an honor system, though a valid option for some employers, comes with the risk of dishonesty and fraud, so employers should ensure that the penalties for false representations are clear and well-communicated to employees if they are relying on the honor system as their mechanism for determining who is able to forgo the use of masks in the workplace.
Finally, it is important to emphasize that the CDC’s guidance is simply advisory and does not overrule “federal, state, local, tribal or territorial laws, rules, and regulations, including local business and workplace guidance.” Many jurisdictions have already been and will likely continue to reduce their COVID-19 safety protocols in response to the CDC’s announcement, but this process will not happen immediately, so businesses should continue to stay updated on applicable state and local regulations and guidance in jurisdictions in which they do business. In addition, at this time, to prevent the spread of COVID-19 and protect employees against the threat of infection, it may be advisable for business to still require all patrons and visitors to wear masks because they do not have the same ability to compel proof of vaccination from such individuals.
As of this writing, the Occupational Safety and Health Agency (“OSHA”) Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace still indicates that employers should not distinguish between workers who are vaccinated and those who are not vaccinated when implementing and enforcing COVID-19 protective measures. However, OSHA is in the process of reviewing the recent CDC guidance and plans to update its guidance accordingly in the near future. In the meantime, OSHA instructs employers to refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.