The CDC is now recommending that everyone – including fully vaccinated individuals – wear masks in indoor public settings in all areas with substantial and high transmission of the COVID-19 virus and get tested following exposure to someone with suspected or confirmed COVID-19. The new CDC guidance also recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.

In its latest Interim Public Health Recommendations for Fully Vaccinated People, the CDC explains that while infections, even with the Delta variant, happen only in a small proportion of people who are fully vaccinated, “preliminary evidence suggest that fully vaccinated people who become infected with the Delta variant can spread the virus to others.”

In a media briefing today, CDC Director Rochelle Walensky explained that the CDC made this decision based on evidence from recent investigations of outbreaks involving the Delta variant which is now the predominant variant in the U.S.  These investigations have shown that on the rare occasion that a vaccinated individual is infected with the Delta variant, that vaccinated person can have as much viral load as a non-vaccinated individual infected with the Delta variant.

New CDC Recommendations For Fully Vaccinated Individuals in Non-Healthcare Settings

As a result, the CDC recommends new steps for fully vaccinated people in non-healthcare settings to protect themselves from being infected with the Delta variant and potentially spreading it to others:

• Wear a mask in public indoor settings if they are in an “area of substantial or high transmission.” The CDC suggests that fully vaccinated people might choose to mask, regardless of transmission level, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease or if someone in their household is unvaccinated.

• Get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19, regardless of whether they have symptoms, and wear a mask in public indoor settings for 14 days after exposure or until a negative test result.

The CDC continues to recommend that vaccinated individuals isolate and get tested if they experience symptoms of COVID-19 and isolate if they test positive.

Healthcare industry employers should continue to follow CDC’s Healthcare Infection and Prevention Control Recommendations and, where applicable, OSHA’s COVID-19 Healthcare Emergency Temporary Standard.

What Areas Have Substantial or High Transmission?

The CDC’s color-coded COVID Data Tracker shows the level of transmission by county.  Red counties have “High” transmission and orange counties have “Substantial” transmission.  The data tracker is updated daily and is based on total new cases per 100,000 persons in the past 7 days and percentage of NAATs (a type of viral diagnostic test) that are positive during the past 7 days.  Currently, 63.45% of US counties have either substantial or high rates of community transmission.

What Does This Mean For Employers?

The CDC information is just guidance; it does not mandate activity.  However, it does provide recommendations for individuals and businesses to follow and OSHA and many states look to CDC for their own recommendations.  In its  guidance for non-healthcare facilities updated on June 10, 2021, OSHA relied on CDC’s guidance for fully vaccinated individuals when it concluded that “most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure” and focused its guidance on protecting unvaccinated and otherwise at-risk workers.  At that time, the CDC was only recommending that non-vaccinated individuals wear face coverings and OSHA aligned its guidance with the CDC recommending that unvaccinated and otherwise at-risk workers use face coverings or surgical masks, unless their work tasks require a respirator or other PPE. Given OSHA’s reliance on CDC guidance for non-healthcare workplaces, OSHA may expect such workplaces to follow the CDC’s new mask recommendations and is likely to update its guidance to once again align with the CDC.

In the last few weeks, many jurisdictions had begun to reinstitute mask requirements or extend them back to cover vaccinated individuals because of the Delta variant.  We expect with the recent CDC shift, others will likely follow CDC guidance and recommend or require universal masking in indoor public settings in counties where there is substantial or high transmission rates as shown by CDC’s tracker.  Unlike CDC and OSHA “guidance” some of the state and local recommendations are mandatory.  State and local authorities may also adopt the CDC’s view that vaccinated individuals should test following exposure to someone with suspected or confirmed COVID-19.

Employers should continue to carefully monitor state and local guidance as well as the level of transmission in their geographic areas which is evolving rapidly. The updated CDC guidance is specifically tied to areas that have substantial and high transmission rates. Since those rates are tied to the prior 7-day period, the transmission rates will continue to change for the foreseeable future, especially after holidays when individuals naturally gather together. For some employers reinstating mask rules for all employees, regardless of community transmission rates, may be a preferred approach to minimize change, particularly if they have offices in multiple locations. While this type of administrative ease is tempting, employers should keep in mind that such a policy will be unpopular with employees in the areas of the country where vaccination rates are high and transmission rates are low—Currently 36.52% of the counties in the country have low to moderate transmission rates and according to CDC’s tracker, those rates are decreasing.  For employers choosing to tie their mask rules to the varying transmission rates, they should be careful in how they communicate any new masking rule so they do not instill fear or distraction every time masking requirements are adjusted due to changes in the local community transmission rate.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations impacting the workplace.  If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.