The Centers for Disease Control and Prevention has revised its recommendations for fully vaccinated individuals, and the change could pose new headaches for employers.<\/p>\n
The CDC on Tuesday said fully vaccinated individuals in COVID-19<\/strong> hot spots should wear masks when indoors. The recommendation, which comes amid a surge in cases due to the Delta variant, is a reversal of its May announcement that said masks were no longer needed for those who were fully vaccinated.<\/p>\n The new guidance says fully vaccinated individuals should wear a mask indoors in public places in areas of substantial or high transmission. Employers can determine their area\u2019s transmission status using this tool. According to the CDC\u2019s map, most of the Southeast \u2014 including all of Florida \u2014 is currently subject to the new recommendations. The Northeast has the lowest concentration of affected areas. As of today, 63% of U.S. counties are subject to the recommendations.<\/p>\n The change could have significant ramifications for employers as the Occupational Safety and Health Administration\u2019s COVID-19 guidance has generally dovetailed with the latest CDC<\/strong> recommendations. OSHA has not yet confirmed whether it will update its guidance or disclosed a timeline for an update, which could leave employers in another extended state of limbo. But that\u2019s just one of many potential challenges that could result for businesses.<\/p>\n Martha Boyd, a shareholder at Baker Donelson Bearman Caldwell & Berkowitz PC, said employers would be well-served to consider the CDC\u2019s guidance as something OSHA will expect to see when it inspects a workplace.<\/p>\n \u201cEmployers<\/strong> probably need to consider that new guidance as modifying what OSHA previously issued, even before OSHA has a chance to revise its own guidance,\u201d Boyd said.<\/p>\n \u201cThe bottom line here is this: The CDC says people should wear masks indoors, vaccinated or not. OSHA can easily find that an employer breached its obligation to keep employees safe under the general duty clause by failing to mandate universal masking in the workplace at this point. I would say that employers whose employees work close together or work with the public, such as manufacturing facilities, groceries\/retail, and hospitality, probably ought to consider requiring masks for everyone again.\u201d<\/p>\n If OSHA continues to follow CDC\u2019s lead, employers in COVID-19 hot spots could be recommended to require and enforce mask rules at their businesses, creating another potential disconnect between employers and some workers, who were already sparring over vaccination rules.<\/p>\n \u201cNo one is going to want to do this, especially when we\u2019ve tasted a few months of freedom,\u201d Boyd said. \u201cAnd unfortunately, this may have the effect of disincentivizing employees who were considering getting vaccinated simply to avoid having to continue wearing a mask indefinitely. The message to employees has to be this: it\u2019s temporary. We\u2019ve done it before. We can do it again. It protects us, it protects our co-workers, and it protects their family members.\u201d<\/p>\n Mark Neuberger, of counsel at Foley & Lardner and a member of the firm\u2019s labor and employment practice group, said the situation will put employers in a tough spot, especially since they were hoping to get people back in the office.<\/p>\n \u201cEmployers need to study the science and come up with protocols that are right for their particular situation and culture,\u201d Neuberger said.<\/p><\/blockquote>\n As we\u2019ve noted, OSHA\u2019s recommendations for non-health-care employers don\u2019t include specific legal requirements, but experts say companies should follow OSHA recommendations to ensure compliance with the general duty clause, which requires employers to provide a workplace \u201cfree from recognized hazards that are causing or are likely to cause death or serious physical harm.\u201d<\/p>\n \u201cIf an employer is not evaluating their workplace for potential COVID-19 exposure, they\u2019re not providing a safe work environment for employees,\u201d Alka Ramchandani-Raj of global employment law firm Littler said in a recent interview about workplace safety guidelines for COVID-19. That interview preceded the new CDC guidance.<\/p>\n Ramchandani-Raj said it is employers\u2019 responsibility to constantly re-evaluate their environments. That would include monitoring new variants, how they could affect workers and what the employer could do to ensure safety.<\/p>\n The CDC\u2019s new recommendations come as vaccine mandates are on the rise \u2014 particularly for government and health care workers.<\/p>\n Employment law experts previously said OSHA\u2019s June guidance created de facto incentives for private employers to mandate the vaccine because it essentially freed them from mask or social distancing requirements if their entire company was vaccinated. Tuesday\u2019s CDC recommendations could eliminate those incentives while also leading to friction with vaccinated employees who don\u2019t want to wear masks.<\/p>\n Additionally, with the CDC\u2019s new mask recommendation focusing only on COVID-19 hot spots, some companies with multiple locations could be forced to navigate an evolving patchwork of recommendations as cases ebb and flow in different states and cities.<\/p>\n <\/p>\n This is just a lie. The data have not changed. According to the CDC, there have been 161 million Americans vaccinated, and just under 6,000 cases of hospitalizations from breakthrough cases. And now they’re telling the vaxxed to mask up again. They’re a joke. https:\/\/t.co\/uGAesuqXKr<\/a><\/p>\n \u2014 Ben Shapiro (@benshapiro) July 28, 2021<\/a><\/p><\/blockquote>\n
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