Can employers mandate vaccines? The Department of Justice’s Office of Legal Counsel (OLC) says they can, but before employers do, they should consider the many legal and practical risks.

On July 26, 2021, the OLC issued an opinion (dated July 6, 2021) 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. However, the OLC expressly states that the opinion does not address whether any other federal, state, or local laws or regulations might restrict the ability of an entity to mandate the vaccine or adopt any particular vaccination policy.  Read our full article here.

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.

Public schools and universities are barred from requiring vaccines that have not received full U.S. Food and Drug Administration (FDA) approval under Ohio House Bill 244 (HB 244), signed by Governor Mike DeWine on July 14, 2021. The new law goes into effect on October 13, 2021. Read more about this new Ohio law here.

On June 24, 2021, the New Hampshire Legislature passed a two-year state budget that includes a paid leave program. Governor Chris Sununu signed the budget on June 25, 2021, and coverage must be provided by January 1, 2023.

The voluntary program, called the Granite State Paid Family Leave Plan, provides New Hampshire workers with 60 percent wage replacement for up to six weeks of work per year if they take time off for personal health or family reasons. Read more about this program.

The Oregon legislature has temporarily amended Oregon’s Equal Pay Act to allow employers latitude to both encourage COVID-19 vaccinations and to attract new employees as the state emerges from COVID-19 business restrictions. Under the revised statute, when evaluating whether employees who perform work of comparable character are paid equitably, a comparison of employee compensation may exclude vaccine incentives. Similarly, hiring and retention bonuses are excluded from the calculation. The exclusion is only temporary, however, and scheduled to expire on March 1, 2022.

Read more on these developments.

As part of the Omnibus Jobs and Economic Growth Finance and Policy Bill, Minnesota Governor Tim Walz has approved an amendment relating to pregnancy accommodations and barring reducing compensation for lactation breaks, among other changes. The amendment goes into effect on January 1, 2022.

Under Minnesota law, employers must provide employees who need to express breast milk for their infant child reasonable break times each day. The amendment prohibits an employer from reducing an employee’s compensation for time used for the purpose of expressing milk. The amendment also includes language that limits an employer’s obligation to the 12 months following the birth of the child. Employers may still ask that these lactation breaks be scheduled over regularly scheduled rest or meal breaks; but if not, they cannot dock pay.

Additionally, the amendment combined Minnesota’s laws related to nursing mothers, lactating employees, and pregnancy accommodations into one section, Minnesota Statute Section 181.939. The law on pregnancy accommodations remains largely the same; however, under the amendment, coverage applies to all employers with at least 15 employees (not at least 21) and there are no longer any length of time or average number of hours per week an employee must satisfy to qualify for the accommodation rights and protections under the statute.

If you have questions or need assistance, please reach out to a Jackson Lewis attorney.

The state and some local COVID-19 supplemental paid sick leave requirements continue through the summer. And the City of Los Angeles’ mayor issued a public order mandating additional paid leave. Under the order, employees who work within the City of Los Angeles and have been employed by their employer for 60 days are entitled to paid time off to get vaccinated for COVID-19, including traveling to and from the appointment, as well as recovering from the side effects of vaccination, if it prevents the employee from being able to work or telework. Read more about the order here.

The Virginia Office of Civil Rights has issued its new poster for employers regarding reasonable accommodations for employees with disabilities. Starting July 1, 2021, covered Virginia employers must post this poster in a conspicuous location and provide a copy of the poster to any employee who discloses they have a disability, within 10 days of that disclosure.

The poster clarifies that the law applies to employers with more than five employees for a 20-week period in the current or preceding year. The law takes effect July 1.

(For more details of the new requirements, see our article, Virginia Employers Soon Must Adopt, Provide Accommodation Policies to Employees With Disabilities.)

If you have any questions, contact the Jackson Lewis attorney with whom you regularly work.