To Mask or Not To Mask? Interpreting the CDC’s New Guidance for Fully Vaccinated Individuals
On May 13, 2021, the Centers for Disease Control and Prevention issued updated guidance stating that fully vaccinated people no longer need to wear a mask or physically distance, including if indoors. Fully vaccinated individuals are those who are two weeks out from either their single shot in a one-dose vaccination regimen, or their second shot in a two-dose regimen. The new guidance also said that fully vaccinated individuals need not be tested for COVID-19 infection following known exposure to the virus, unless they are residents or employees of correctional facilities or homeless shelters.
While this news was greeted with enthusiasm, as many prepared to toss their well-worn masks, both the substantial carve-outs in the CDC guidelines and ongoing restrictions still in place under state and local authorities mean that the fully vaccinated still have not been given carte blanche to go maskless. As a threshold matter, the new CDC guidance specifically states that employees should continue to follow any workplace restrictions regarding COVID safety. Thus, employers still have the freedom to enforce more stringent mask requirements regardless of the CDC’s current position. In fact, certain employers may actually be required to enforce mask-wearing, as many jurisdictions still impose heightened safety protocols despite rising vaccination levels.
For example, on May 4, 2021, the Oregon Occupational Health and Safety Division converted its temporary rule addressing COVID safety in the workplace to a permanent rule, promising that it would be repealed sometime in the future. That rule requires employers in Oregon to enforce physical distancing and the wearing of face coverings in the workplace. Similarly, California’s Department of Public Health issued updated guidance on May 5, 2021, approving largely unrestricted activity for fully vaccinated people—but not at work. Instead, California employers must continue to follow the emergency temporary standards of California’s state OSHA division, which requires the use of masks. Conversely, Texas, as early as March, lifted a statewide mask mandate by executive order and restored all business and facilities to 100% capacity. In turn, Illinois lies in the middle of the spectrum, as its governor stated that Illinois would follow the new CDC guidance for fully vaccinated people. Otherwise, prior mask-related restrictions remain in place. Therefore, it is imperative for employers – and, particularly, multi-state employers – to keep abreast of rapidly evolving state and local requirements, in addition to the CDC’s guidance regarding best practices.
Furthermore, the Occupational Health and Safety Administration (OHSA) has yet to weigh in on workplace mask-wearing. As of May 17, 2021, OSHA announced that it was continuing to review the CDC guidance. Because the CDC has carved out workplace rules from its newly relaxed mask guidelines, a contrary directive from OSHA—which specifically regulates the workplace—would likely control. We do not, however, expect that OSHA will issue more stringent guidance absent some marked changes in the number of COVID cases.
For now, employers should focus on complying with any state and local regulations that govern mask-wearing requirements in the workplace, and consider whether their workplaces are ready for the kind of relaxation of protocols that the CDC has said is permissible.
- Theresa Y. Kananen
- Ashley Steiner Kelly
Partner and General Counsel
- Henry M. Perlowski