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.

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Photo of Katharine C. Weber Katharine C. Weber

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. She has successfully assisted countless clients in handling their labor and employment issues in both…

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. She has successfully assisted countless clients in handling their labor and employment issues in both Ohio and Kentucky.

Katharine has experience litigating wrongful discharge cases; managing discrimination cases; negotiating collective bargaining agreements; representing employers before the Equal Employment Opportunity Commission and other federal, Ohio and Kentucky agencies; advising management on employment relations; drafting employee handbooks; and negotiating severance agreements.

Katharine regularly advises clients on wage and hour issues. Over the past five years she has served as lead counsel on various wage and hour class and collective actions filed in both Ohio and Kentucky involving claims of misclassification, off the clock work, and other violations for which the plaintiffs claimed to be owed substantial overtime.

Additionally, Katharine is extremely knowledgeable in the area of the Americans with Disabilities Act, and the Family and Medical Leave Act, and brings sophisticated, yet easy to understand advice on handling and defending against sexual harassment claims. From helping clients analyze options and making recommendations on how to handle employee relations issues, to representing clients in complex discrimination cases, Katharine always provides creative solutions and passionate advocacy for her clients. She is also very involved in the transportation industry and has successfully litigated several cutting-edge employment law cases which have been of great benefit to transportation industry employers.

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Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from…

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from vaccine mandates to the Dobbs response, to ESG and the attacks on DEI, to the impact of Loper Bright. The combination of Patty’s ability and tenacity to understand and apply workplace law to nuanced legal questions and specific situations results in clients perpetually asking this initial question, “What does Patty think?”

Patty is the National Head of the firm’s Emerging and Cross-Disciplinary Issues. She has over 25 years of experience representing and defending employers in nearly every form of employment litigation, including class actions. She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, OSHA, the OFCCP, and the NLRB, in addition to various state agencies.

Focusing on the best possible outcome for the client Patty takes a 360-degree view, working with employers to avoid litigation by developing effective policies and practices, including harassment policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

Patty is a core team member of the firm’s Disability, Leave & Health Management practice group and a leader of the Religious Accommodation Team. She provides practical advice to help companies respond to remote work challenges, paid and unpaid leave situations and the most challenging accommodation requests, all of which have been exacerbated by the pandemic, hybrid work and changes in the law.

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Photo of Jenifer M. Bologna Jenifer M. Bologna

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which…

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which they operate.

Jenifer specializes in preventative advice and counsel on a nation-wide basis, regularly advising clients on multi-state employment law issues to address an increasingly remote and hybrid workforce. In addition, she supports employers in navigating the complex and growing body of federal, state and local leave, accommodation and benefit laws that impact an employer’s response to employees who are injured or ill, have family care responsibilities or need time to bond with children.

Jenifer’s extensive counseling experience allows her to provide nuanced advice that helps employers effectively respond to the legal and business challenges posed by the varying array of workplace employment laws. Utilizing creative legal strategies and practical advice, she guides clients through these complex issues that often demand individualized solutions.

Jenifer’s goal is to minimize her clients’ litigation risk by working with them to implement preventative strategies and constructive solutions. As such, she regularly assists employers with policy and process development or improvement, including absence management and accommodation protocols and multi-state employment policies. Understanding there is no one-size-fits-all approach, Jenifer works with clients to develop an employment law compliance strategy that best fits their specific needs.

In addition to advice and counsel, Jenifer frequently speaks on disability and absence management issues and employment law compliance, including regularly conducting workplace training on these topics.

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Photo of Tara K. Burke Tara K. Burke

Tara K. Burke is the knowledge management (“KM”) attorney for Jackson Lewis P.C.’s Disability, Leave & Health Management practice group, and is based in the Cincinnati, Ohio, office of Jackson Lewis P.C. She works with employers to build positive and inclusive workplaces and…

Tara K. Burke is the knowledge management (“KM”) attorney for Jackson Lewis P.C.’s Disability, Leave & Health Management practice group, and is based in the Cincinnati, Ohio, office of Jackson Lewis P.C. She works with employers to build positive and inclusive workplaces and reduce legal risk through policy development, training, and employment law counseling.

Tara provides practical and legal advice to clients on employment law issues including harassment and discrimination prevention, diversity and inclusion, hiring and interviewing, internal investigations, disability accommodation and leave management, reductions in force, individual separations and employee relations issues. Tara works with clients, including multi-state employers, to identify the trends in workplace law and stay in compliance with the rapidly changing state-by-state legal landscape. Tara helps clients of all sizes and in all industries, create, revise and implement workplace policies and procedures including employee handbooks. She also routinely conducts workplace training for leadership, human resources, managers and employees on numerous topics including strong management practices that reduce legal risk and build effective teams, preventing sexual harassment by supporting respectful and positive workplaces, achieving winning results through diversity and inclusion, conducting investigations, and employee accommodations and leaves of absence.

Tara has defended employers in employment-related litigation and administrative proceedings.

In addition to working with for-profit clients, Tara also works with non-profit clients, including small non-profits, to provide employment law expertise to non-profit organizations supporting our communities across the country.

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