COMMENTARY & ANALYSIS
How volatile is the government response to COVID-19? From the moment we began assembling the materials for writing this article till now, strongly worded recommendations and enforceable restrictions have abruptly changed and almost completely altered from what they were only days earlier.
To make situation even more disruptive, both state and local standards now being dictated also vary wildly, creating confusion and inspiring widespread popular anger. This is especially the case because the same officials—starting with President Biden and stretching on down through the federal bureaucratic ranks—had adamantly declared that no one would need to wear a mask anymore following their full vaccination.
Adding to public confusion and anger is that those same officials continued to parrot the statement that this is purely a disease of the unvaccinated in the wake of a rising flood of cases spurred by the spread of the delta variant of the virus, which appears to have originated in India. It eventually became clear that a substantial portion—how large a number we still don’t know—of those who already have received their shots can still contract the disease and even get sick from it.
The popular impression left by officials in their rush to use the variant to browbeat more people into getting vaccinated is that they appear to have gotten it wrong earlier when they assured people vaccinations obviated the need for masks, and this isn’t the first or only time they have issued contradictory statements since the pandemic began. Parents also were sparked to anger by orders for children to wear masks in school and the hinted threats to close schools again.
Public controversy also erupted when large employers like the federal government and smaller private sector employers have tied continuation of employment to getting vaccinated as well as restaurants, bars and other retail establishments that have gone a big step beyond simply requiring customers wear masks by demanding patrons supply proof of vaccination to enter their premises.
For employers, if there is any good news arising from this, it derives from the fact that we have been through this exercise before, so the changes are nothing new, and they should be able to adapt to the changes—assuming that we don’t return to the extreme lockdowns imposed earlier in the pandemic.
The best advice coming from attorneys who specialize in employment law is: Keep up with the everchanging developments and remain as flexible as you can be in the face of changing circumstances.
The most up-to-date guidance from the Centers for Disease Control and Prevention (CDC) was issued on July 30, revising its previous guidance issued just three days earlier. The advice is that everyone wear a mask in indoor public settings in areas of substantial and high transmission, regardless of their vaccination status. As of July 30, the government reported that 76.5% of counties in the U.S. have either substantial or high rates of community transmission.
“High viral loads suggest an increased risk of transmission and raised concern that, unlike with other variants, vaccinated people infected with delta can transmit the virus,” said CDC Director Rochelle P. Walensky, after her agency conducted an investigation of an outbreak in Massachusetts.
Although critics have accused the CDC of jumping the gun on the basis of one small outbreak, “This finding is concerning and was a pivotal discovery leading to CDC’s updated mask recommendation,” Walensky explained. “The masking recommendation was updated to ensure the vaccinated public would not unknowingly transmit the virus to others, including their unvaccinated or immunocompromised loved ones.”
What Should Employers Do?
The latest guidance from the CDC has frustrated some employers who are attempting to develop sensible policies to return their workforce to offices and other worksites, admits attorney Jennifer B. Rubin of the Mintz law firm.
However, she adds, “CDC’s latest guidance is further proof that resilient workplaces and workplace policies are founded in both flexibility and consistency. While the changing nature of this pandemic continues to make future-proofing the workplace difficult, we believe a mindful approach is the best inoculation against a chaotic return to the workplace.”
Many businesses were in the process of planning for a post-Labor Day return to the physical office, whether on a transitional, semi-hybrid or permanent basis, when the CDC updated its guidance in response to the delta variant, Rubin says. “Given the shifting guidance, some employers may decide to wait to plan the return.”
Uncertainty continues to litter the path toward the future, according to Rubin. “But to some employers, delayed planning might be no planning at all—as the delta variant wanes, the epsilon variant might rise, new vaccines or boosters might be developed, and additional guidance might be implemented.”
This could be a costly delay, she says, noting that valuable collaborative working opportunities could be lost, business planning and productivity could be permanently impaired, and employee recruitment and retention could be at risk. “While practicality might dictate a ‘wait and see’ approach, many employers are anxious to move forward with a return to the office despite the elusive and unpredictable nature of this pandemic.”
In spite of what some people think, employers can require that employees get vaccinated in most situations, as we have seen with many healthcare facilities and, under President Biden’s orders, the federal workforce, members of the military and U.S. Postal Service (USPS) workers. California also has required that all state employees get vaccinated as well.
“Employers who have rejected mandatory vaccination programs or put off making this decision might wish to reconsider implementing mandatory vaccination programs, which are permissible in the private workplace, except in those states that have banned mandatory vaccination in the private workplace (such as, to date, Montana),” Rubin urges, even at the risk of courting controversy.
Of course, as we have seen in the case of the union representing most USPS employees, forcing employees to accept the shot could end up setting light to a powder keg in today’s highly emotional environment.
Watch for Further Changes
The CDC earlier had suggested that fully vaccinated people might choose to wear a mask, regardless of transmission level, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease or if someone in their household is unvaccinated, observe attorneys from the Jackson Lewis law firm. That recommendation was hardened and expanded in the CDC’s July 30 announcement, particularly in regard to exposure to someone else who has tested positive.
“Get tested three to five days following a known exposure to someone with a suspected or confirmed case of COVID-19, regardless of whether they have symptoms, and wear a mask in public indoor settings for 14 days after exposure or until they receive a negative test result,” they note. “The CDC continues to recommend that vaccinated individuals isolate and get tested if they experience symptoms of COVID-19 and isolate if they test positive.”
Healthcare industry employers should continue to follow CDC’s Healthcare Infection and Prevention Control Recommendations and, where applicable, the Occupational Safety and Health Administration’s (OSHA) COVID-19 Healthcare Emergency Temporary Standard.
“The CDC information is just guidance; it does not mandate activity,” the attorneys point out. “However, it provides recommendations for individuals and businesses to follow and OSHA and many states base their own recommendations on information from the CDC.”
Also, as attorneys from the Littler Mendelson law firm explain, OSHA’s Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace explicitly references the CDC guidance in its recommendations for employers.
Popular beliefs notwithstanding, the attorneys say employers are allowed to ask employees about their vaccination status, and such inquiries do not in any way implicate the Health Insurance Portability and Accountability Act (HIPAA). Some states, including California and Washington, earlier explicitly required employers to determine vaccination status to have made it possible at that time to lift COVID-19 safety protocols for employees who were fully vaccinated.
The Littler Mendelson attorneys also warn that before modifying any safety requirements, employers must make sure that they are collecting accurate and reliable information regarding who has been vaccinated, and should coordinate these efforts through their human resources and EHS personnel or others experienced in the proper collection and storage of employee health information in accordance with the Americans with Disabilities Act, Occupational Safety and Health Act and state laws.
They also stress that employers should understand that the CDC has set the triggering point for safety restrictions at a very low level of case transmission. Decisions by state or local authorities about whether to formally re-impose requirements will depend, in part, on more tangible factors than transmission rate alone, including the actual impact on community healthcare systems and the way their employees work.
“Employers should monitor for updates in state and local guidance, reevaluate their exposure control plans, determine what changes may be needed to reduce the risk of workplace exposure to COVID-19, and establish appropriate rules for their onsite workforce,” the Littler Mendelson attorneys recommend. “Employers also should evaluate community public health considerations, their employees’ actual vaccination status, and their own levels of risk tolerance in establishing a path forward.”