For employers looking to resume normal operations, it is too soon for that. But there are certainly signs of hope and reason to continue to prepare for that day to come soon as positive cases of the virus continue to decline and more and more people are in the process of becoming vaccinated.
On March 4, Governor Ivey extended her Safer at Home Order, which requires face coverings in public spaces and places other restrictions on specific businesses, until April 9, 2021. She did lift table seating restrictions on restaurants and bars and allow more visitors of nursing home residents. Governor Ivey indicated that this would be the final extension of the Order; therefore, businesses can expect all statewide COVID-19 restrictions to expire on April 9. Employers should continue to be mindful of county and municipal ordinances that may remain in place following the expiration of the statewide Order. Employers should also consider, based on the nature of their workplaces and the vaccination status of their employees, whether to retain some or all of their COVID-19 precautions beyond the expiration of state and local mandates to help ensure the health and safety of their employees and prevent community spread of the virus until herd immunity is reached through vaccination.
Employers making decisions regarding loosening of COVID-19 precautions will want to pay close attention to evolving guidance being issued by federal and state public health authorities. On March 8, the Centers for Disease Control and Prevention (“CDC”) issued the first set of public health recommendations for people who are fully vaccinated against COVID-19. For purposes of these recommendations, an individual is considered “fully vaccinated” two weeks after receiving the second dose in a 2-dose series (Pfizer-BioNTech or Moderna) or two weeks after receiving a single-dose vaccine (Johnson & Johnson). Although the recommendations are primarily directed towards individuals, rather than workplaces, they provide important insight regarding the relative risks of indoor workplace gatherings when the entire workforce has not yet received the vaccine.
According to the CDC guidance, “small gatherings likely represent minimal risk to fully vaccinated people.” Therefore, fully vaccinated individuals can gather indoors with other fully vaccinated people without wearing a mask or physical distancing. This opens more possibilities for face to face, unmasked meetings in the workplace among vaccinated employees. Again, one is not considered “vaccinated” until two weeks after the second dose, in the case of the Pfizer and Moderna vaccines, or first (and only) Johnson & Johnson dose.
However, because there is a risk that vaccinated individuals may still transmit the virus to others, precautions remain necessary for interactions with unvaccinated individuals. The guidance states that vaccinated people may visit indoors with unvaccinated people from a single household without a mask with low risk of transmission. But, if any of the unvaccinated household members are at an increased risk of severe COVID-19 due to age or health conditions, all attendees should take standard precautions including wearing a mask, maintaining six feet of distance, and visiting outdoors or in a well-ventilated space. Additionally, the CDC recommends that vaccinated people continue to follow standard COVID-19 precautions when visiting with members of multiple households at the same time, at public gatherings, and in public settings such as indoor dining and going to the gym due to prevent community transmission.
Employers should also note that under the current CDC guidance, fully vaccinated individuals are not required to quarantine following an exposure to someone with suspected or confirmed COVID-19. Vaccinated individuals should still monitor for symptoms for fourteen days following exposure and isolate themselves and seek testing if they begin to experience symptoms. Employers will want to consider revising your employee quarantine policies to differentiate based on vaccination status in order to diminish the necessity of lengthy quarantine periods and the resulting time away from the workplace for vaccinated employees.
You may ask, “Don’t we need to know who in our workforce has been vaccinated to apply the new guidance and begin to open up our workplace?” Yes, you do. The good news is you can legally ask your employees if they have been vaccinated, and you can require documented proof of vaccination. Of course, collecting this data must be done carefully. While asking if an employee has been vaccinated is not a “disability-related inquiry” under the ADA, a person’s vaccine status is medical information that must be kept confidential. While few employers are requiring their employees to be vaccinated, many are encouraging and incentivizing them to do so. To know whether an employee is entitled to an incentive (e.g. a paid day off, a ticket in a company-wide raffle, or a gift card), employers need proof of vaccination. You also need proof to know who can congregate unmasked within your office. Finally, just knowing what percentage of your workforce has been vaccinated and publishing the data (without names), may comfort employees about the safety of your workplace.
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