March 16, 2021

As employers consider whether to require vaccinations for employees and how to handle employees who refuse to be vaccinated, the CDC has given employers some clarity ... and new issues to navigate. On March 9, the CDC issued its first set of recommendations for fully vaccinated people, providing guidance for everyone who has been patiently wondering what types of pre-COVID activities they can safely resume now that vaccines are here.

According to the CDC, fully vaccinated people can now safely gather indoors with other fully vaccinated people without wearing a mask, as well as refrain from quarantining and testing for COVID-19 following a known exposure so long as they remain asymptomatic. (The CDC considers someone to be "fully vaccinated" at two or more weeks after receiving the second dose of the Pfizer or Moderna vaccines, or the single dose of the Johnson & Johnson vaccine.)

But, as dinner parties make a triumphant return and the noses of the vaccinated are mostly spared from unpleasant swabs, the new guidelines make clear that fully vaccinated people must continue to take certain precautions, including:

  • Wearing a mask and maintaining social distance when in public, when gathering with unvaccinated people from more than one household, or when visiting with an unvaccinated person who is at increased risk of severe illness or death from COVID-19 or who lives with a person at increased risk;
  • Avoiding medium- or large-sized gatherings;
  • Delaying domestic and international travel; and
  • Getting tested if experiencing symptoms.

For employers navigating the constantly changing landscape of COVID-19 policies, the guidelines offer new options and potential new challenges, whether due to easing workplace restrictions or continuing them.

For example, the CDC guidelines explicitly state that fully vaccinated people still need to follow guidance issued by their employers, as well as the travel requirements and recommendations of the CDC and local health departments. This means that employers that wish to continue maintaining robust safety protocols may do so, and employers may require all employees to abide by those protocols, regardless of vaccination status. This is especially true for employers that do not mandate vaccinations, or that have vaccinated and unvaccinated employees interacting in the workplace. Most workplaces are not the "small gatherings" contemplated by the new guidelines, so the COVID-19 precautions we are all used to, such as mask-wearing, social distancing, and disinfection of high-touch surfaces, should continue.

The most helpful aspect of the CDC's guidelines may be the ability of vaccinated employees to avoid quarantining and testing even after a known exposure to COVID-19 so long as they remain asymptomatic. As many employers have learned over the past year, the main operational challenges posed by COVID-19 were not just the absence from the workplace of employees seeking testing or testing positive, but also the quarantine imposed on employees who may have been exposed to the virus. A single case of COVID-19 could completely shut down operations for over two weeks. Now, employers can consider whether to have fully vaccinated employees continue to work even after a known exposure, keeping operations going and easing, somewhat, the difficulties of an ongoing pandemic.

Of course, the pace at which employers can ease workplace restrictions will depend on the percentage of employees vaccinated. Employers, especially those with employees with vaccine hesitancy, should educate their workforces about the benefits of vaccination. The CDC has created a toolkit with helpful resources to assist employers with communicating to employees about the vaccine.

Employers should also consider the potential impact of creating different sets of rules for vaccinated and unvaccinated employees. In addition to possibly inviting claims of unfair treatment on the basis of disability, pregnancy, or religion (for those employees who are not vaccinated due to medical, pregnancy, or religious reasons), separate policies may create tension or resentment among employees who are accustomed to a work setting where everyone is typically required to follow the same rules.

When considering easing certain restrictions – for example, permitting small groups of vaccinated employees to gather unmasked in a conference room – employers should remain mindful that the CDC's guidance is only part of a broader patchwork of recommendations, guidelines, and requirements. State and local rules, in addition to standards adopted by OSHA, should be considered before modifying policies or easing enforcement for fully vaccinated employees. And we anticipate that the CDC, as well as state and local health authorities, will continue to issue updated guidance as more and more individuals are vaccinated, and as new information comes to light regarding variants of the virus, how well COVID-19 vaccines keep people from transmitting the disease to others, and how long the vaccines' protective effects will last.

Our team will continue to monitor developments and provide updates as they become available. In the meantime, if you have any questions regarding the CDC's new guidance or other employment challenges related to COVID-19, please reach out to your Much attorney or a member of our Labor & Employment group.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.