In light of the May 28, 2021 CDC guidance announcement regarding fully vaccinated people, we asked Attorney Cressinda (“Chris”) D. Schlag, of Counsel at Jackson Lewis to share a few of the most frequently asked questions that her colleagues and she hear from employers about the new CDC guidance. Jackson Lewis helps employers to develop strategies, policies and guidelines that adhere to labor and employment laws and regulations.
In the video and transcript below, Chris sheds light on how employers can determine and handle the CDC’s unexpected announcement and the responses of OSHA and health departments at the federal, state and local levels.
What will the impact of the latest CDC guidance be on workplace health and safety requirements?
Cressinda (Chris) Schlag: Hi there, my name is Chris Schlag, and I'm an attorney with Jackson Lewis. I specialize in environmental health and safety law, and I help employers comply with workplace health and safety requirements. I'm here to chat with you today about the CDC's new guidance and the impact to employers that start planning their reopening and return to work. So you may know a few weeks ago, we got some new guidance from CDC, which conveys to employers that fully vaccinated people do not have to wear a mask or socially distance while they're in the workplace. This raises really big questions for employers about what they need to do to protect their workforce and whether fully vaccinated persons in the workplace still need to wear a mask or socially distance. Well, unfortunately, this is a complicated answer and what employers do need to be aware of is CDC's guidance has a really big exception in it for workplace health and safety guidance, as well as federal, state and local laws that govern the workplace.
So... what that means is CDC guidance is not the end all for employers, and they'll need to carefully that whether there are any other applicable laws or guidance for their workplace, which would still have employees wearing face masks while they're at work or socially distancing even if they are fully vaccinated. Employers will also need to decide if they are going to relax their policies, what that means in terms of checking vaccination status, or asking about vaccination status in the workplace.
Is CDC guidance controlling for my workplace?
Chris: Is CDC guidance controlling for my workplace? CDC guidance really is just that--guidance.
Before CDC guidance is controlling, it has to be adopted and used by an entity that governs the workplace. So, if you're in an area where there has been a state or local rule or specific order that's adopted the guidance, then you have reason to follow the guidance.
Federal OSHA has also told employers through a banner on its website that they believe employers can follow CDC guidance. So the answer is generally yes. At a higher level, because COVID is a recognized hazard in the workplace, employers do have a general duty obligation under OSHA's Occupational Health and Safety Act to make sure that they are protecting against that hazard. One way to do that is to follow what we know about COVID and use the industry standards and guidance that you see for protecting against COVID hazards. See federal OSHA’s June 10th updated guidance.
Since CDC is the premier authority in the United States, that's telling employers and the public how to protect themselves against COVID, it's reasonable to use CDC guidance in your workplace. With that said, some of the prevention measures that you might need to protect against COVID may be be further defined by state and local laws, and also federal OSHA guidance down the road (See federal OSHA’s June 10th updated guidance). So it is worth being cognizant of where your workplace is, what specifically you're doing in terms of industry and task, and make sure that you have the right guidance and right rules in place before making any changes to your prevention measures or finalizing your return to work plans.
Should employers relax mask and social distancing requirements in response to the updated CDC guidance?
Chris : For fully vaccinated persons, it's a really interesting question for employers, and it does raise a whole host of other issues. For example, if you're going to relax your prevention measures, do you do it on some type of system where employees are responsible for conveying if they are vaccinated? Do you check if they're vaccinated? Do you verify vaccination status for individuals entering the workplace? Do you have it on some type of an honor system where it's basically up to the individual to decide what prevention measures are appropriate for them, and will you have met your general duty class obligations or comply with local laws if you do relax those measures? It's a really complicated question, and it often in times calls for a very complicated answer.
We know for sure that there are some states, where you definitely need to keep social distancing and face coverings in place for the time being, specifically in California. And there are some other states where you might be able to relax some of your preventative measures in response to CDC guidance.
But before you do, you need to make sure you have a detailed Hazard Assessment and make sure you have controls in place to control the COVID hazard particular to your geography, your industry and the task that you're performing. If you need help in this area, we strongly advise you to reach out to counsel, because this is a really complex issue, and there are some really major legal nuances that need to be vetted before you finalize your work procedures.
Should employers still be concerned about federal OSHA issuing an emergency temporary standard?
Chris: This is really big question for employers, because it means that their compliance obligations might change, and it makes the health and safety requirements for the workplace be a little bit in flux. It's also unclear how employers should be interpreting and applying CDC guidance in their workplace, because federal OSHA hasn't fully responded to that guidance yet. Well, the answer is, we just don't know what federal OSHA going to do, and the reason for this is, while they have said that they will be updating their guidance in response to CDC guidance and plan to update their COVID-19 web page, they haven't said exactly whether they're still pushing for the emergency temporary standard, whether they'll make changes or how they see that playing out.
We do know that the agency believes an emergency temporary standard is still needed. We do know that the emergency temporary standard has been drafted and was sent to the White House before CDC issued its new guidance. So there's a possibility that it could be approved, and there's a possibility that employers could still have to comply with the new requirement down the road. (See the updated federal OSHA stance from June 10th with updated guidance.)
What we can say is that federal OSHA does have some pretty extensive guidance for employers on workplace health and safety requirements with respect to COVID, which advised that employers should have a written COVID Prevention Plan, address COVID hazards in the workplace through completing a Hazard Assessment and implementing responsive controls and use some best practices, including training for employees on good hygiene, respiratory etiquette, and frequent cleaning and disinfection protocols. If you need some help on these, you can always check out federal OSHA's guidance page. You can also reach out to Jackson Lewis, and we'd be more than happy to give you more information.
Updated post originally published in May 2021. Updated post notes the June 10, 2021 federal OSHA guidance.