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Delta variant, new CDC masking guidance and your return to work plans: 6 considerations for employers

August 4, 2021

After the U.S. Centers for Disease Control and Prevention’s (CDC’s) guidance in May suggested that fully vaccinated individuals no longer needed to wear a mask in most settings, employers across the U.S. began crafting and communicating their plans to return to in-person work. With the end of the 2019 novel coronavirus (COVID-19) pandemic seemingly in sight, many companies were targeting the week after the 2021 Labor Day holiday to be fully or mostly physically back to work. With the delta variant now spreading rapidly throughout the U.S., and the CDC’s new masking guidance in place, employers are left wondering how all of this impacts their return to work plans.

As you re-examine your business’ return to work plans in light of the CDC’s new masking guidance, the following are six practical considerations to keep in mind:

1. The new CDC masking guidance is limited

While the updated CDC guidance was a blow to many employees and employers who were anxious to eliminate wearing masks indoors, there were only two substantive changes to the guidance:

  1. Masking is now recommended for all individuals regardless of vaccination status in any indoor “public” space if in an area of “substantial or high transmission.” The updated guidance does not define what is meant by “public” space and the term is open to multiple interpretations. One popular interpretation is that “public” areas include areas where individuals congregate and are unable to socially distance. The term “substantial or high transmission” is determined by a statistical analysis at the state and county levels. The CDC’s updated guidance includes a link to the Data Tracker Weekly Review that enables searching for transmission levels by state and county. Additionally, for Wisconsin employers, the Wisconsin Department of Health Services (DHS) also provides transmission levels by county.
  2. If an individual is fully vaccinated and has been around someone who has COVID-19, then the individual should get tested three to five days after the date of exposure, even if there are no symptoms AND wear a mask indoors in public for 14 days following exposure or until the individual has a negative test result. Only if the individual tests positive is there a recommended quarantine for 10 days, which is not a change from prior guidance.

2. No change in EEOC COVID-19 vaccination guidance

The Equal Employment Opportunity Commission’s (EEOC’s) COVID-19 vaccination guidance has not changed from when it was last updated on June 28, 2021. There has been no indication that the EEOC is in the process of or planning to update this guidance. As such, employers remain free to require employees to be vaccinated. If you are considering requiring your employees to be vaccinated, there are key exceptions you need to be aware of to avoid running afoul of the law.

3. OSHA’s COVID-19 safety guidance has not changed

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued a COVID-19 emergency temporary standard for health care workers and general guidance for employers. There have been no updates to the June 10, 2021, guidance which now contains outdated information and CDC guidance references.

4. Continue to review state and local COVID-19 orders

Remember that the CDC guidance is just that, recommendations that employers are free to adopt or not. In contrast, state and local COVID-19 orders may mandate restrictions that apply to employers and those mandates can change quickly.

5. Flexibility and employee communication continue to be important

The guidance employers continue to receive from various state and federal agencies is incomplete and often inconsistent, due in large part to the rapidly changing science that surrounds what we know about COVID-19. Employers should continue to diligently review their return to work plans, pivot and adjust as needed based on federal, state and/or local guidance, rules, regulations or laws, and provide updates to employees as soon as possible.

6. Multistate employers should stay current on new state legislation

If you have employees that continue to work remotely in other states, ensure your review includes new laws that require employers to reimburse employees for certain business expenses, like California and Illinois, and that the employees who are covered by those state laws receive updated communications that confirms the company will be tracking and complying with the new laws.

Now is the time to address the new CDC guidance with your employees

If you haven’t already, now is the time to distribute an updated employee communication that addresses the new CDC masking guidance, the impact that guidance has on current practices, the current practices that remain unchanged and any updates to the return to work schedule.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of Labor, Employment & Immigration Law Practice Group.

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