Four Things Employers Should Know About Workplace Masking and Social Distancing Rules and Employees Fully Vaccinated for COVID-19

On May 13, 2021, the Centers for Disease Control and Prevention announced that persons fully vaccinated against COVID-19 could resume activities that they did prior to the pandemic without masking or social distancing. I was in the car, headed back to the office after lunch, when I heard the news, which I found simultaneously exciting and confusing. Like everyone else, I had, of course, been waiting for news suggesting that life might return to something akin to pre-pandemic “normal,” but I wasn’t sure what the new CDC guidance meant for me. Did this mean that I no longer needed to wear a mask walking through the building and on the elevator ride up to M2D’s office suite? I soon learned that clients had similar questions: Was the CDC saying that workplace masking and social distancing mandates should be eliminated for fully vaccinated employees?

Two weeks have passed, and the frustrating thing is this: There remains no conclusive guidance explaining what the CDC’s May 13 announcement means for employers. In light of this guidance vacuum, here are four things employers should know, at least until there are further developments, about fully vaccinated employees and workplace masking and social distancing mandates.

No. 1: The CDC has announced that masking and social distancing are no longer required for persons fully vaccinated against COVID-19.

The CDC recommendations (accessible here) are clear: Persons fully vaccinated against COVID-19 “can resume activities that [they] did prior to the pandemic,” and they can do so “without wearing a mask or staying 6 feet apart.” The recommendations are not unqualified; they provide, for example, that fully vaccinated people should continue to mask on planes, buses, trains, and other forms of public transportation; there are more detailed recommendations for those traveling internationally; and none of the new recommendations are intended for healthcare settings. Additionally, the recommendations defer to applicable law, meaning that the CDC guidance does not undermine or trump legal masking requirements, such as those imposed at the state and local government level (and some of which remain in effect). Even so, the recommendations contain specific examples of indoor, high-risk activities in which fully vaccinated people may now engage without masking or social distancing—e.g., attending a “full-capacity worship service” or participating “in an indoor, high intensity exercise class.”

No. 2: The CDC’s recommendations only apply to those who are “fully vaccinated.”

“Fully vaccinated” means that at least two weeks have passed since a person received her vaccine (the single-dose of the Johnson & Johnson Janssen vaccine or the second dose of the two-dose Pfizer or Moderna vaccine). If a person does not meet these requirements, she is not “fully vaccinated” and must continue all COVID-19 safety precautions, including masking and social distancing. The CDC recommendations also state that certain fully vaccinated people, such as those with weakened immune systems, may not be fully protected from COVID-19 even after they are fully vaccinated. The CDC recommends that these people discuss their circumstances with a healthcare provider, including whether continued masking and social distancing are required.

No. 3: The CDC’s recommendations on masking and social distancing for fully vaccinated people do not contain express guidance for employers.

Individuals, not employers, are the intended audience of the CDC’s new recommendations. The guidance does not state that masking and social distancing requirements should be relaxed or eliminated in the workplace. To the contrary, noticeably absent from the recommendations is guidance with respect to work-related application of the newly announced rules for those fully vaccinated. To the extent the recommendations address employment, they do so by stating that individuals must continue to follow masking and social distancing rules imposed in “workplace guidance.” While this isn’t indication that the CDC has concluded that workplace masking and social distancing rules for fully vaccinated people remain necessary, it demonstrates that the CDC is aware that some employers will continue such rules, without regard to vaccination status.

No. 4: OSHA has not issued guidance to employers on masking and social distancing for fully vaccinated workers, but it has suggested that the CDC recommendations should inform employer decisions on measures appropriate to protect fully vaccinated workers.

From the perspective of many employers, OSHA’s response to the COVID-19 pandemic has been frustrating. Well over a year into the pandemic, OSHA still has not issued binding guidance regarding measures that the agency deems acceptable to protect workers from COVID-19. And the non-binding guidance that OSHA has issued has, in many cases, been less than clear.

For now, available guidance on OSHA’s website continues to state that masking and social distancing should be required in workplaces. (See guidance here and here.) And despite the fact that two weeks have now passed since the CDC updated its masking and social distancing recommendations for fully vaccinated people, OSHA’s only response has been to publish on its website the following disclaimer: “The [CDC] has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

Some employers are reading the above as OSHA’s blessing on the relaxation or elimination of workplace masking and social distancing mandates for fully vaccinated workers. Others see ambiguity in the language, particularly in light of the fact that OSHA continues to work on publishing a binding emergency temporary standard on COVID-19, which could, at least in theory, contain requirements around workplace masking and social distancing. What is clear is this: Specific, practical guidance from OSHA is needed soon, and employers should closely monitor OSHA’s website for updates, which are expected any day now.

The Bottom Line for Employers

Despite the lack of timely guidance from OSHA, many employers are now considering relaxing or eliminating workplace masking and social distancing requirements for fully vaccinated workers. In doing so, employers must carefully consider the practical challenges that arise from establishing and maintaining COVID-19 protocols that differ based on vaccination status. One of the most salient questions is how an employer will determine (and in some cases, verify) vaccination status, and once status is known, how the employer will police compliance. Vaccination status is not visible and, in most cases, is not generally known—how will an employer ensure that an unmasked employee in the workplace is, in fact, fully vaccinated? And what is an employer to do, if anything, about the employee-relations issues that are likely to arise from a system that continues to impose on unvaccinated employees full-time masking and social distancing requirements, particularly in light of the fact that vaccination status is sometimes closely correlated with legally protected characteristics like disability and religion?

Our hope is that agency guidance will soon provide concrete answers to these questions, but in the meantime, there is no replacement for careful and intentional consideration of these complex issues before implementing changes to COVID-19 safety protocols. And if changes are implemented, workforce communications should explain them in plain, easy-to-understand language, anticipating and answering questions that employees may have about the impacts of the updated rules.