Last week, the CDC released new guidance stating that fully-vaccinated individuals “no longer need to wear a mask or physically distance” in non-healthcare settings. Contractors, however, had questions about whether they needed to continue following OSHA’s guidance from January 2021 stating, “Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant.”

Employers May Follow the CDC’s Guidance for Fully Vaccinated Workers

On Monday, OSHA updated its website to confirm that employers may follow the CDC’s guidance for fully-vaccinated workers:

The Centers for Disease Control and Prevention (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 the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

Thus, contractors can consider loosening the masking and social distancing restrictions on employees who are fully-vaccinated. Note that the loosened restrictions do not apply in healthcare settings, and employers may still be required to follow state and local masking mandates. 

Contractors wishing to adopt the CDC’s new standard may want to confirm an employee’s vaccinated status before allowing the worker to remove his or her mask. Remember, the EEOC has made clear that asking if a worker has been vaccinated is not a “disability-related inquiry” or a “medical exam” as long as the contractor doesn’t also ask “why” an individual hasn’t received the vaccine. Asking for proof (such as a CDC vaccine card) of vaccinated status also does not necessarily implicate the Americans with Disabilities Act (ADA), but, given the ADA confidentiality rules, it is best to treat the information you receive from employees as confidential information. 

Contractors wishing to take a more “hands off” approach may instead implement an “honor system” instructing employees to follow the CDC guidance or, at a minimum, certify that they are fully-vaccinated (i.e., two weeks after the final dose). This approach may have risks depending on future OSHA guidance and/or pose risks relating to negligence or workers’ compensation.

As contractors consider what to do next, it would be wise to engage competent labor and employment counsel to ensure that any revisions to your masking policies comply with federal and state law and, for union employees, that you comply with any obligation to give the union notice of the proposed policy changes.

FCA will continue to monitor this story as it develops.