September 24, 2021

Volume XI, Number 267

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Masks Off, Masks On - Now What?

CDC’s updated guidance suggesting facial coverings be worn in “public indoor settings” adds a new but hopefully surmountable barrier to returning the workforce to the office (though undefined, we presume this means any indoor location where two or more individuals are working). At the outset, the CDC guidance does not create a Federal workplace mandate but rather provides a baseline for the creation of safety standards grounded in scientific data – data we recognize is not static given the nature of the Coronavirus pandemic. The latest guidance has frustrated some employers who are attempting to develop sensible policies to return their workforce to offices. We offer some practical guidance regarding the changes, if any, employers might consider in response to the latest CDC guidance.

CDC’s Updated Facial Coverings Guidance

On July 27, in response to the spread of the Delta variant and in light of new scientific data, the CDC reversed its previous guidance advising that fully vaccinated individuals could remove facial coverings in most indoor settings and instead recommended that individuals resume wearing facial coverings in public indoor settings in areas experiencing  "substantial" or "high" transmission. CDC also recommended in its updated guidance, in response to reports of breakthrough infections (fully vaccinated individuals becoming ill with the virus), that individuals wear facial covering if (1) they are immunocompromised, (2) are at increased risk for developing a severe case of COVID-19, or if (3) they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated. CDC also recommended that those who are fully vaccinated who are exposed to someone with suspected or confirmed incidents of COVID-19 to be tested 3-5 days after exposure, and they should wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Can One Size Fit All Worksites?

In light of CDC’s updated guidance that suggests facial coverings be worn by fully vaccinated individuals in certain locations, employers with multi-jurisdictional worksites are faced with an immediate decision regarding the approach to facial coverings for fully vaccinated individuals. While many states have enacted bans against providing proof of COVID-19 vaccination in both the public and private sphere, it does not appear that any jurisdiction (yet) prohibits employers from enacting a universal facial covering requirement.  A policy providing for facial-coverings for all employees would avoid a jurisdiction-specific plan and has the benefit of a simple, non-invasive and relatively low-impact approach that aligns with CDC guidance.  Of course this approach could implicate employee morale – as employees in the states with high vaccination rates (and low incidents of transmission and hospitalizations) may view a masks-all policy as unnecessarily punishing those who have been vaccinated (or do not live with those who are at risk).  It could also hinder employees already reluctant to return to the office from doing so unconstrained. But this conservative approach would avoid fluctuating policy changes in response to weekly changes in case counts at each worksite the employer operates.

Weekly Modifications to Office Facial Covering Requirements

Some employers may wish to adopt a worksite-specific policy in line with the CDC guidance. These policies may fluctuate on a weekly basis in response to the changing transmission rates that CDC tracks. Employers implementing policies based on CDC’s updated guidance will need to update their own policies on a weekly basis after first determining whether their worksites are located in “substantial” or “high” transmission areas. Prior to implementing this policy, it will be important to have a clear understanding of the location of each physical worksite – and whether any updated stated or local regulations also apply to that worksite.  Employers should also expect Federal and some state OSHA regulations to be modified in light of CDC’s guidance and employers are always obligated to comply with all applicable Federal, state and local safety regulations applicable to each of their worksites.

Regular Testing

Diagnostic COVID-19 testing is becoming more affordable, prevalent and efficient. Employers returning workers to their worksites may wish to consider implementing regular employer-paid COVID-19 diagnostic testing on a voluntary basis, even absent reports of confirmed employee COVID-19 exposure. Regular testing may provide peace of mind, particularly to those fully vaccinated employees who have individuals in their households who are immunocompromised or are not able to be vaccinated (such as children under the age of 12).

(Re)consider Mandatory Vaccination?

While the latest scientific data suggests that even fully vaccinated individuals can transmit the highly contagious Delta variant, the public health benefits of mandatory vaccination are undisputed as the data shows that the vast majority of individuals who become seriously ill or die are those who are unvaccinated. Employers who have rejected mandatory vaccination programs or put off making this decision might wish to reconsider implementing mandatory vaccination programs, which are permissible in the private workplace, except in those states that have banned mandatory vaccination in the private workplace (such as, to date, Montana).

Postpone the Return?

Many businesses were in the process of planning for a post-Labor Day return to the physical office, whether on a transitional, semi-hybrid or permanent basis, when the CDC updated its guidance in response to the Delta variant. Given the shifting guidance, some employers may decide to wait to plan the return. But to some employers, delayed planning might be no planning at all – as the Delta variant wanes, the Epsilon variant might rise, new vaccines or boosters might be developed and additional guidance might be implemented. In the meantime, valuable collaborative working opportunities could be lost, business planning and productivity could be permanently impaired and employee recruitment and retention could be at risk. While practicality might dictate a “wait and see” approach, many employers are anxious to move forward with a return to the office despite the elusive and unpredictable nature of this pandemic.

Summary

CDC’s latest guidance is further proof that resilient workplaces and workplace policies are founded in both flexibility and consistency. While the changing nature of this pandemic continues to make future-proofing the workplace difficult, we believe a mindful approach is the best inoculation against a chaotic return to the workplace.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 210
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About this Author

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
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