The CDC and the Biden Administration Issue New Mask and Vaccine Guidance and Mandates, and Employers May Soon Follow Suit

On July 27, the CDC updated its guidance on masking for fully vaccinated individuals, who had previously been advised that they could forego masks. The CDC now recommends that all individuals “wear a mask indoors in public if you are in an area of substantial or high transmission” or “if they or someone in their household is immunocompromised or at increased risk for severe disease, or if someone in their household is unvaccinated.” Per the CDC’s COVID Data Tracker, areas of substantial or high transmission encompass much of the United States. In keeping with this recommendation, the Office of Management and Budget instituted a mask mandate for all federal workers, contractors, and visitors in federal facilities located in areas experiencing substantial or high transmissions.

Additionally, on July 29, President Biden announced that most civilian federal employees and contractors will be required to attest to their vaccination status. Those who refuse to do so, or refuse to receive a vaccine, will be required to take weekly COVID-19 tests, wear masks, social distance, and adhere to travel restrictions. President Biden also directed the Department of Defense to review when and how to impose a vaccine mandate on members of the military.

In his remarks, President Biden also encouraged businesses to require their employees to get vaccinated and alluded to recent guidance from the Department of Justice, which issued an opinion finding that the Emergency Use Authorization status of the COVID-19 vaccine does not prevent employers from requiring vaccine mandates. Recently, the US Equal Employment Opportunity Commission advised that vaccine mandates are generally lawful under workplace anti-discrimination laws subject to accommodation review as required by law for disabilities as defined under the Americans with Disabilities Act and sincerely held religious beliefs as recognized under Title VII.

Even before President Biden’s announcement, several large and high-profile employers publicly announced vaccine mandates for their employees. It is likely that in the weeks ahead, more and more employers will follow suit.

Key Takeaways

The Delta variant is impacting the return to office plans of many employers. New guidance on masks and vaccines creates more issues for which organizations must be mindful, including:

• Reasonable Accommodations. While employers may mandate vaccines for employees physically required to be present at their worksite, they should be mindful of the need for potential religious and disability accommodations. Employers may have an obligation to engage in the interactive process when employees object to vaccine mandates on such grounds.

• Collective Bargaining. A vaccine requirement is likely a mandatory subject of bargaining. Unionized employers should review their collective bargaining agreements to determine what rights they may have before imposing new mask or vaccine requirements.

• Paid Time Off. Employers should be aware of state and local laws regarding paid time off for employees who request leave to receive a vaccination either on behalf of themselves or to assist a family member. Some jurisdictions already require paid time off for preventive health care, while others have enacted COVID-19 specific requirements which may apply.

• Recordkeeping. Employers should develop a plan on how to securely collect and store employee vaccination data.

• Local Requirements. Certain jurisdictions may require, or inhibit, the ability of employers to apply mask or vaccine mandates. Montana, for example, recently passed a bill that prevents most employers from requiring vaccines permitted under an Emergency Use Authorization. Washington, DC, meanwhile, has announced a mask mandate in indoor public settings.