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On May 13, 2021, the Centers for Disease Control and Prevention (\u201cCDC\u201d) revised its Covid-19 guidance for fully vaccinated persons.\u00a0 The revised guidance now states as follows:<\/p>\n
https:\/\/www.cdc.gov\/coronavirus\/2019-ncov\/vaccines\/fully-vaccinated.html<\/a> (emphasis added). \u00a0The CDC, however, exempted healthcare workplaces from its new guidance and left its most recent guidance for healthcare workplaces issued on April 27, 2021 in place.\u00a0 See <\/em>https:\/\/www.cdc.gov\/coronavirus\/2019-ncov\/hcp\/infection-control-after-vaccination.html<\/a>. \u00a0The new guidance further requires even fully vaccinated persons to wear masks on planes, buses, trains, and other forms of public transportation. \u00a0\u00a0The Occupational Safety and Health Administration (\u201cOSHA\u201d) has yet to update their Covid-19 related guidance, but it has declared their intentions to do so.\u00a0 In doing so, OSHA has stated that it will follow the CDC\u2019s guidance. \u00a0https:\/\/www.osha.gov\/coronavirus\/safework<\/a>. \u00a0Presumably, if employers adopt policies and practices consistent with the CDC\u2019s new guidance, they will avoid any OSHA compliance issues.\u00a0 A number of states have issued statements to the effect that they endorse the CDC\u2019s new guidance.<\/p>\n Beyond the exemption from wearing masks, the CDC\u2019s new guidance exempts asymptomatic and fully vaccinated persons from procedures required under the CDC\u2019s earlier guidance.\u00a0 First, they no longer need to undergo Covid-19 testing and quarantining after a known exposure to a person infected by Covid-19.\u00a0 Second, screening tests may exempt fully vaccinated individuals.\u00a0 Third, they may travel domestically without testing or quarantine periods.\u00a0 Finally, they can travel internationally without any United States-imposed requirements before or after their trip.<\/p>\n The CDC\u2019s new guidance includes the following definition of a fully vaccinated person.\u00a0 Such an individual must have received either both doses of the Pfizer BioNTech or Moderna vaccination or a single dose of the Johnson and Johnson\/Janssen vaccine and a period of two weeks must have elapsed since her or his second dose of a two dose vaccine or the only dose of a one dose vaccine.\u00a0 \u00a0<\/p>\n As it has in the past, the CDC\u2019s issuance of revised Covid-19 guidance raises new questions for employers to ponder as they implement the revised guidance in their workplaces.\u00a0 On the one hand, it allows employers to choose whether they will continue to require masks and social distancing.\u00a0 On the other, most non-healthcare employers may decide to allow fully vaccinated employees to work in both inside and outside work areas without masks.\u00a0 To implement such a policy change, they must know the vaccination status of their workers.\u00a0 How an employer gathers that information and what it does with it to change its policies and practices in the workplace has legal implications.\u00a0 To avoid liability for violations of employment discrimination and occupational safety and health laws, employers must act both thoughtfully and strategically.\u00a0 The answers to the following questions will help employers to manage their liability risks and to obtain and to document the information that they need to implement the CDC\u2019s revised guidance in their workplaces.<\/p>\n I. Does the CDC\u2019s New Guidance Make State or Local Regulations Requiring Workers to Wear Masks Invalid?<\/em><\/strong><\/p>\n No.\u00a0 If state or local laws, ordinances, orders, or other regulations require mask wearing and social distancing, then they remain in effect and the CDC\u2019s new guidance defers to them. \u00a0\u00a0For example, currently, neither Missouri nor the vast majority of its local governments require fully vaccinated persons to wear masks either indoors or outside.\u00a0 https:\/\/www.news-leader.com\/story\/news\/politics\/2021\/04\/15\/covid-19-updates-where-face-masks-required-mandate-springfield-missouri-mo-vaccine\/7189472002\/<\/a>.\u00a0 In Illinois, furthermore, Governor Pritzker revised the mask mandate to make it consistent with the CDC\u2019s guidance effective May 17, 2021.\u00a0\u00a0\u00a0 https:\/\/www2.illinois.gov\/Pages\/Executive-Orders\/ExecutiveOrder2021-10.aspx<\/a>. \u00a0Similarly, the City of Chicago also modified its mask requirements to follow the CDC\u2019s new guidance as of May 18, 2021.\u00a0 https:\/\/www.chicago.gov\/city\/en\/depts\/cdph\/provdrs\/health_protection_and_response\/news\/2021\/may\/Statement_from_CDPH_on_Updated_Mask_Guidance.html<\/a>. Thus, before an employer changes its policies and practices to follow the CDC\u2019s guidance for fully vaccinated employees in its workplace, it should consult with its labor and employment law counsel for advice as to whether either state or local regulations requiring mask wearing even by fully vaccinated persons remain in effect. \u00a0\u00a0<\/p>\n II. Can an Employer Lawfully Ask Whether an Employee Has Fully Vaccinated Status?<\/em><\/strong><\/p>\n Yes. \u00a0The Equal Employment Opportunity Commission (\u201cEEOC\u201d) issued guidance near the end of 2020 recognizing that employers may ask workers about their vaccinated status without violating the Americans with Disabilities Act (\u201cADA\u201d).\u00a0 See<\/em> https:\/\/theblogforbusinesslaw.com\/what-questions-do-employers-need-to-ask-about-covid-19-vaccinations\/<\/a>. They, however, should limit their questioning to inquiries that require only a \u201cyes\u201d or \u201cno\u201d answer.\u00a0 In addition, employers should avoid any questions that seek information about the reasons for an employee\u2019s negative answer in response to whether he has been vaccinated.\u00a0 An employee\u2019s explanation of the reasons for his non-vaccinated status could cause him to disclose information about a disability, his religious beliefs, or his personal medical history.\u00a0 Generally, the ADA prohibits employers from questioning an employee as to whether she has any disabilities or about the extent of her disabilities, unless she has requested an accommodation.\u00a0 In addition, Title VII of the Civil Rights Act of 1964 (\u201cTitle VII\u201d) protects employees from discrimination on the basis of religion.\u00a0 Absent a work-related reason, employers should avoid posing questions likely to cause employees to disclose their religious beliefs. Similarly, the Genetic Information Nondiscrimination Act (\u201cGINA\u201d) makes employer\u2019s questioning about an employee\u2019s medical history unlawful.<\/p>\n Generally, employers should trust but verify an employee\u2019s acknowledgement of her vaccinated status.\u00a0 They should require such an employee to show the employer a copy of the completed CDC-issued vaccine card or a printout of vaccination status from a health care provider that administered a vaccine.\u00a0 Employers should also keep a record of the proof by either making a photocopy of it or preparing an employer created log that summarizes the information on the employee\u2019s vaccination record.\u00a0 If the employer keeps a copy of the employee\u2019s vaccination record, it should maintain the copy in the same manner as confidential medical information and allow access to such information only to managers and supervisors with a need to know it.\u00a0 In addition, the maintenance of a copy of an employee\u2019s vaccination record likely satisfies the requirements for a medical record pursuant to OSHA\u2019s regulations.\u00a0 See 29 C.F.R. 1910.1020.\u00a0 Consequently, employers must maintain such records for the duration of the employee\u2019s employment plus 30 years.<\/p>\n If an employer creates a tracking system or summary document instead of maintaining a photocopy of an employee\u2019s vaccination record, it can avoid the requirements for medical records under OSHA\u2019s regulations.\u00a0 To accomplish that end, a person other than a physician, nurse, or other health care personnel or technician must make and maintain the tracking system or summary document.\u00a0 The employer, nonetheless, should treat the tracking system or summary document as a medical record for ADA and GINA purposes and maintain it in a confidential manner apart from the employer\u2019s other employment records.<\/p>\n III. Has the EEOC Modified Its Guidance in View of the CDC\u2019s New Guidance?<\/em><\/strong><\/p>\n Yes.\u00a0 The EEOC updated its technical assistance guidance regarding Covid-19 and equal employment opportunity laws again on May 28, 2021.\u00a0 See https:\/\/www.eeoc.gov\/wysk\/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws<\/a>.\u00a0 This update revisited several issues upon which the EEOC had previously provided guidance in view of the CDC\u2019s May 13, 2021 guidance.\u00a0 Basically, the EEOC confirmed that the equal employment opportunity laws impose no limitation on an employer\u2019s adoption of a mandatory Covid-19 vaccination condition of employment if it also satisfies the reasonable accommodation requirements of the ADA and Title VII.\u00a0 In addition, the federal equal employment opportunity laws permit employers to offer incentives to employees to provide documentation or other confirmation of their vaccination obtained from a third party in the community, such as a pharmacy, health care provider, or public clinic. Employers that receive such information about their employees\u2019 vaccinations must keep it confidential pursuant to the ADA.\u00a0 Employers may also administer vaccinations to their employees and offer modest incentives to encourage them to get vaccinated. Because vaccinations require employees to answer pre-vaccination disability related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.\u00a0 Even very large incentives, however, offered to employees to obtain vaccinations from third party providers raise no issues of coerciveness.<\/p>\n IV. If an Employer Adopts a Policy that Allows Fully Vaccinated Employees to Go Mask-less, Can It Require All Other Workers to Wear Masks?<\/em><\/strong><\/p>\n Yes.\u00a0 The general duty clause of the Occupational Safety and Health Act requires employers to provide to each worker \u201cemployment and a place of employment, which are free form recognized hazards that are causing or are likely to cause death or serious physical harm.\u201d\u00a0 29 U.S.C. \u00a7 654(a) (1).\u00a0 In view of the transmission of the Covid-19 virus primarily through breathing, most employers have implemented policies requiring social distancing and mask wearing in communal areas and shared work areas of an employer\u2019s facility.\u00a0 If such an employer now decides to allow fully vaccinated employees to work without wearing masks, it would still require either unvaccinated workers or those who have not disclosed their vaccinated status to the employer to wear masks and to socially distance in the workplace.\u00a0 In addition, the employer must protect the mask wearing employees from mistreatment by either supervisors or co-workers.\u00a0 OSHA\u2019s existing guidance directs employers to treat unvaccinated workers in substantially the same manner as it treats vaccinated employees.\u00a0 Thus, employers should communicate to all workers that they prohibit any one or more of retaliation, discrimination, or harassment of unvaccinated employees.\u00a0 Similarly, employers must include unvaccinated workers in meetings and social events on the same basis as vaccinated employees. \u00a0<\/p>\n Conclusion.<\/em><\/strong> The Covid-19 pandemic has evolved to the point where effective vaccinations have lessened the need for universal mask wearing.\u00a0 Most view this development as reason for optimism that the pandemic will end or, at least, continue only at a manageable level with marginal impact on workplaces.\u00a0 The CDC\u2019s new guidance exempting fully vaccinated persons from wearing masks either indoors or outdoors in most circumstances offers employers the opportunity to adjust their workplace Covid-19 related policies.\u00a0 For more information about the CDC\u2019s new guidance or its implementation in a particular workplace, please contact Gerry Richardson at (314) 552-4053 or grichardson@evans-dixon.com<\/a>.<\/p>\n www.evans-dixon.com<\/p>\n Missouri | Illinois | Kansas | Nebraska | Iowa<\/p>\n<\/p><\/div>\n