With COVID infections once again on the rise, federal agencies have issued new guidance regarding masking recommendations for fully vaccinated individuals and whether employers can mandate COVID vaccines as a condition of employment regardless of the vaccine’s status with the Food and Drug Administration (“FDA”).
On July 27, 2021, the U.S. Centers for Disease Control and Prevention (CDC) announced that the agency now recommends that individuals in areas of “substantial” and “high” COVID-19 transmission should wear masks indoors even if fully vaccinated. This reversal of the CDC’s May 3, 2021 guidance is a result of a dramatic increase in infections due in large part to the Delta Variant. Although the vast majority of new infections are among the unvaccinated, there have been enough “breakthrough” cases that the CDC felt compelled to act. The CDC has established a tracking website that employers can use to monitor the transmission rate on a county-by-county basis.
Not to be outdone, the Department of Justice’s Office of Legal Counsel (OLC) issued an opinion stating that the COVID-19 vaccinations’ Emergency Use Authorization (EUA) status under the Food, Drug, and Cosmetics Act (FDCA) does not prevent public and private entities from imposing vaccine requirements, and doing so as a condition of employment. This mirrors what the State of New Jersey has already proclaimed in its updated guidance issued on March 19, 2021. While there are still issues for employers to be aware of and reconcile before mandating the vaccine, the OLC’s opinion removes what was perhaps the biggest concern for employers seeking to require their employees be vaccinated.
Why you need to know about this?
Although the CDC’s newest guidance is just a recommendation, employers must still be aware of the change in guidance and understand that failing to follow those recommendations could result in costly fines and the threat of litigation. On June 10, 2021 the Occupational Safety and Health Administration issued its own updated guidance lifting mask requirements and did so by expressly relying on the CDC’s conclusion that fully vaccinated individuals no longer needed to wear masks indoors. Given that the CDC’s conclusion has changed, it stands to reason that OSHA’s guidance is no longer valid. OSHA, as the federal agency tasked with enforcing safety regulations at the workplace, has the authority to level fines and other sanctions against non-complying employers. Therefore, an employer not adhering to the CDC’s recommendation to again mandate masking indoors could result in a complaint to OSHA that the employer is not following their duty to preserve the health and safety of its workers. Such complaints are time consuming, public record and can result in fines and remediation programs. To avoid facing an OSHA complaint or other legal action, employers should strongly consider heeding CDC’s new recommendation and returning to mask mandates even for fully vaccinated workers.
Regarding COVID vaccines, the OLC’s Opinion puts employers on strong legal footing to begin requiring employees to get vaccinated or be excluded from the workplace. However, while the Opinion does remove a significant barrier to employer mask mandates, employers must still be cognizant of other legal pitfalls associated with vaccine mandates. Employers considering mandatory vaccination policies should consider, among other things:
- Bargaining obligations for unionized workforces;
- Accommodations are still available for individuals who cannot receive the vaccine due to disability, pregnancy, or sincerely held religious beliefs;
- Disparate impact risk, and whether the employer can show the vaccine mandate is job-related and a business necessity;
- Employee relations considerations and whether a mandate will cause disruptions in the workplace which are of increasing concern as workplace violence stemming from the politicization of these issues is on the rise;
- Vaccine mandates can also cause an employer to lose employees or limit the pool for new hires which may be particularly difficult in the current labor market;
- The business’s risk tolerance as legal challenges to mandatory programs will continue even with the OLC’s Opinion;
- Confidentiality concerns regarding how employers will confirm vaccination status and the related recordkeeping;
- Wage and hour compliance; and
- Possible liability risk if the vaccine causes an adverse reaction in an employee who only receives the vaccine because it is mandated.
Employers should work with experienced employment counsel to consider the above factors before implementing a mandatory vaccine policy.
What should you do now?
On the issue of masking requirements, employers should start by consistently monitoring the CDC’s transmission tracker to know whether any county in which the employer operates has a “substantial” or “high” transmission rate. In addition to that monitoring, employers should determine how they will respond if and when they are operating in areas covered by the CDC’s updated guidance. Re-instituting mask mandates could have several adverse impacts on the workplace including workforce disruptions, employee complaints and even the threat of litigation. These issues should be thoroughly considered before an employer decides how it will respond to the CDC’s new guidance.
For vaccine mandates, employers should re-visit any prior considerations for mandating the vaccine and also work with experienced employment counsel before proceeding with a vaccine mandate. Employers should be aware of the workplace climate as an initial step in mandating COVID vaccines.