September 19, 2021

Volume XI, Number 262

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CDC Vaccination Guidance Does Not Supersede State and Local Workplace Regulations

On May 13, 2021, the Centers for Disease Control and Prevention (the “CDC”) published guidance indicating that fully vaccinated individuals do not need to wear a mask or physically distance in certain indoor and outdoor environments, except where otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.  The guidance does not apply to healthcare settings and certain other environments.  

The CDC guidance applies to “fully vaccinated” individuals, which means that two weeks have passed since the person has received either: (1) a second dose of a two-dose series, or (2) one dose of a single dose series, and in both cases for any of the current FDA-approved EUA vaccines.

The CDC guidance does not impact the current EEOC guidance regarding COVID-19 vaccinations. That guidance, which was updated in December, permits employers to ask employees whether they are vaccinated.  Employers, however, should be cautious when making this inquiry.  While asking whether an employee has been vaccinated is not a medical inquiry, asking in a manner that would solicit medical information (e.g. asking for the reason why one is not vaccinated) could be construed as an impermissible medical inquiry under the ADA.

Critically, the CDC’s guidance also does not impact state and local regulations applicable to the COVID-19 pandemic in the workplace.  Many states, such as New York and California, as of today, continue to require fully vaccinated individuals to wear masks in certain environments although they are studying the CDC’s guidance closely before making any further changes to mask mandates.  Other states have already followed the CDC’s lead and loosened restrictions or have announced that such changes are imminent.  Further, the Occupational Safety and Health Administration (“OSHA”) has not yet weighed in on workplace safety standards regarding masks, which may further impact an employer’s ability to loosen restrictions at the workplace.

Given the continuing effect of state and local restrictions and lack of OSHA guidance, employers should carefully review applicable guidelines and remain cautious before making any changes to existing workplace policies.  As part of this process, businesses should consider how to develop compliant inquiries about individuals’ vaccination status – for employees, clients, customers, vendors, visitors, and other on-site populations – and how to request verification of vaccination status where necessary.  Employers must also consider whether and to what extent they might differentiate between unvaccinated and vaccinated workers going forward from a policy perspective and in a compliant manner.  We will continue to track the CDC’s guidance, state and local restrictions, and guidance from OSHA to assess whether employers may allow fully vaccinated employees to go unmasked in the workplace or if other restrictions may similarly be relaxed.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 134
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About this Author

Associate

Danielle represents clients in employment disputes and investigations. 

Prior to joining Mintz, Danielle was an associate with a Washington, DC law firm dedicated to employment law. Managing a docket of 30 to 40 clients in plaintiffs’ federal and private sector employment matters, she regularly prepared and filed complaints before the Equal Employment Opportunity Commission (EEOC), assisted clients in investigations, responded to proposed disciplinary actions, drafted complaints of discrimination, and advocated for clients at mediations and settlement conferences — successfully...

202.434.7398
Jennifer Rubin Employment Attorney Mintz
Member

Jen draws on 30 years of experience crafting legal solutions to employment challenges. Her clients include small and large businesses and individual representation of executives. She advises technology, financial services, publishing, retail, professional services, and health care companies seeking regulatory, litigation, and compliance advice. She divides her employment practice between wage and hour compliance and trial practice, with a focus on class actions, trade secrets and employment mobility disputes, and the defense of discrimination, retaliation and other disputes arising from...

858.314.1550
Michael S. Arnold, Mintz Levin Law Firm, Labor Law Attorney
Member / Chair, Employment, Labor & Benefits Practice

Michael Arnold is Chair of the firm's Employment, Labor & Benefits Practice.  He is an employment lawyer who deftly handles a wide array of matters. His capabilities include counseling on everyday HR life cycle issues, defending management and senior executives in connection with employment-related proceedings, and assisting companies navigate the complex employment issues that arise in transactions.  Michael’s clients appreciate his strong emphasis on providing not just legal advice, but also practical advice, that aligns with organizational and HR strategies while...

212-692-6866
Corbin Carter Employment Attorney Mintz Law Firm
Associate

Corbin counsels clients and litigates all types of employment disputes before federal and state courts. He has experience handling all stages of the litigation process and resolving disputes through mediations and settlements. His practice also encompasses negotiating and drafting employment and separation agreements; advising clients on compliance with federal, state, and local employment laws; and conducting internal investigations.

Prior to joining Mintz, Corbin was an assistant corporation counsel within the Labor and Employment Law Division of the New York City Law Department....

212.692.6244
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