As of April 27, 2021, 29.1% of the U.S. population has been fully vaccinated for COVID-19. With COVID-19 vaccine eligibility expanding to the general public, and states and cities relaxing COVID-19 restrictions, employers face the new challenge of navigating a partially vaccinated workforce. We previously addressed questions related to return-to-work and vaccination issues for employers here. Below are some additional, and recent, questions we’ve received from clients related to this topic.

1. Can employers now relax masking requirements for vaccinated employees?

Probably not. The CDC guidance for fully vaccinated people states that in indoor public spaces, fully vaccinated people should continue to wear a well-fitted mask, cover coughs and sneezes, wash hands often, and follow any applicable workplace guidance. In other words, the level of precautions taken should be determined by the characteristics of the unvaccinated people.

The CDC guidance was updated on April 27, 2021 to state that fully vaccinated people no longer need to wear a mask outdoors, except in certain crowded settings and venues. However, at this time, employers with employees working outside should probably not modify mask requirements for vaccinated employees due to the OSHA guidance and the potential legal issues discussed below.

On January 29, 2021, OSHA issued guidance that employers should not distinguish between vaccinated and non-vaccinated employees, and vaccinated employees must continue to follow protective safety measures, such as wearing face coverings and remaining physically distant. The OSHA guidance notes that the CDC needs more time to understand the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

Implementing different safety requirements for vaccinated and unvaccinated employees could give rise to other legal issues. For example, privacy issues may be raised if masks could be used as a means of knowing who has been vaccinated and who has not. Additionally, employers may also face claims of unfair treatment for those employees who are not vaccinated due to medical, pregnancy, or religious reasons.

Employers may discipline employees who refuse to comply with safety measures (e.g., mask wearing) on the same basis as any other employee who violates a safety rule, unless the employee objects on protected grounds – such as a medical issue. In those cases, the employer should conduct a reasonable accommodation analysis to determine whether the employee’s refusal to comply with the safety measure can be reasonably accommodated without undue hardship to the employer.

2. May employers require only unvaccinated employees to submit to regular COVID-19 tests?

Probably. The CDC updated its guidance for fully vaccinated people on April 27, 2021 to state that fully vaccinated people with no COVID-19-like symptoms and no known exposure should be exempted from routine screening testing programs, if feasible.

The CDC guidance also clarifies that most fully vaccinated people with no COVID-like symptoms do not need to quarantine, be restricted from work, or be tested following an exposure to someone with suspected or confirmed COVID-19, as their risk of infection is low. The CDC stated that testing (but not quarantine) is still recommended following an exposure for fully vaccinated residents and employees of non-healthcare congregate settings (e.g., correctional and detention facilities, homeless shelters) and employees of high-density workplaces (e.g., poultry processing plants).

Thus, the CDC guidelines suggest that employers may now have most fully vaccinated employees continue to work even after a known exposure, which is good news for employers hoping to keep operations going. However, employers should remain mindful that the CDC’s guidance is only part of a broader scheme of recommendations, guidelines, and requirements. State and local rules and OSHA guidelines should be considered before modifying policies or easing enforcement for fully vaccinated employees. As noted above, the current guidance from OSHA is that employees should not be treated differently in terms of workplace safety precautions based on vaccination status. The potential impact of creating different sets of rules for vaccinated and unvaccinated employees could involve claims of unfair treatment for those employees who are not vaccinated due to medical, pregnancy, or religious reasons. Also, employers should consider whether separate policies would create tension or affect workplace morale.

The CDC, as well as state and local health authorities, will likely continue to issue updated guidance as more individuals are vaccinated. For now, if an employer chooses to only screen nonvaccinated employees, they should be consistent in applying the policies, continue to reasonably accommodate employees who may decline or not be able to get tested or vaccinated due to medical or religious reasons, and take steps to safeguard the confidentiality of test results and vaccination status and to not single out unvaccinated employees.

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If you have questions about your obligations regarding COVID return-to-work issues, contact Leslie Basque, Kevin Koronka or your Husch Blackwell attorney. This information is intended only to provide general information in summary form on legal and business topics of the day. The contents hereof do not constitute legal advice and should not be relied on as such. Specific legal advice should be sought in particular matters.