In November 2020, many Americans breathed a sigh of relief, as news broke that an effective and safe vaccine had been developed against COVID-19. As vaccines from Pfizer, Moderna, and Johnson & Johnson began to roll out in early 2021, numerous citizens began to roll up their sleeves for protection against the virus. In May 2021, many COVID-19 related restrictions were abandoned in the continental U.S. (including the dreaded indoor mask requirement) after the CDC advised that vaccinated individuals did not need to wear masks while indoors.
Fast forward to August 2021, and the unwelcome spread of the highly contagious Delta variant, and we seem to be creeping back to mandatory mask wearing in many states, as the CDC recently recommended that fully vaccinated individuals wear masks in public indoor settings in areas of “substantial or high transmission.” This recommendation comes as no surprise with the Delta variant on the rise, coupled with the fact that vaccinated individuals can still become sick from the virus, as well as transmit the virus.
So what is an employer to do with these new CDC guidelines? While the new guidelines do not define “public indoor settings,” such settings were previously differentiated by the CDC from household settings. Hence, it is safe to say these new guidelines apply to businesses outside of individuals’ homes. Because it is assumed that these guidelines pertain to companies, employers and businesses should consult with the CDC’s COVID-19 Integrated County View website (covid.cdc.gov/covid-data-tracker/#county-view) to determine if the areas in which they do business are COVID-19 hotspots with substantial or high transmission. This website is updated by the CDC daily, reflecting locations that have substantial transmission or high transmission over a 7-day period.While CDC guidelines are not considered “law,” OSHA and the courts could interpret CDC guidelines to be a standard of care. Accordingly, in the event an employer does not abide by the new CDC guidelines, OSHA could cite an employer for not abiding by the guidelines, on the grounds that the employer breached the OSHA “general duty clause.” In addition, individuals who contract the virus while visiting non-CDC abiding businesses may sue, claiming that the business was negligent by not abiding by the respective restrictions. Although CDC guidelines are just that – guidelines – employers and businesses should therefore heed the CDC’s guidance… to the possible dismay of your some of your vaxed and vexed employees.