On March 8, 2021, the Centers for Disease Control and Prevention (CDC) released new guidance and interim public health recommendations for fully vaccinated individuals[1]. The guidance provides that fully vaccinated individuals may resume certain activities, such as gathering indoors and without masks under certain circumstances, and avoid certain restrictions that apply to individuals who are not fully vaccinated, including, but not limited to, quarantining following a “close contact” exposure[2] to someone with COVID-19.
The purpose of this special bulletin is to advise employers of the new CDC guidance and to identify where the changes in federal guidance on such subjects conflicts with, or may conflict with, current and operative requirements under State law.
The CDC guidance specifically provides that fully vaccinated employees may engage in the following conduct[3]:
-
- Gather indoors with other fully vaccinated people without wearing masks or physical distancing;
- Gather indoors with unvaccinated people from one other household without wearing masks or physical distancing, so long as the unvaccinated individual(s) is/are not at high risk for a serious COVID-19-related illness[4]; and
- Avoid quarantining or being tested for COVID-19 following contact with or “close contact” exposure to an individual with COVID-19, unless the fully vaccinated individual presents symptoms associated with COVID-19[5].
Despite the updated guidance from the CDC, employers must continue to comply with California Department of Public Health (CDPH) face covering requirements and Cal/OSHA Emergency Temporary Standards (“COVID-19 regulations’),[6] including mandatory quarantines following “close contact” exposures.[7]
Neither CDPH nor Cal/OSHA have updated their requirements or regulations to reflect the newly issued CDC guidance. As a result, certain CDPH requirements and Cal/OSHA regulations conflict with, or may conflict with, specific allowances provided for under the CDC guidance.[8]
Requirement to Use Face Coverings Applies to Fully Vaccinated Employees
With respect to the CDC guidance concerning the permissibility of fully vaccinated individuals meeting in person and without wearing face coverings, CDPH guidance on that subject[9] makes no allowances for and provides no exemption to fully vaccinated individuals. As a result, fully vaccinated individuals remain subject to the CDPH requirements, and the conduct authorized by the CDC remains prohibited by CDPH.
The CDPH guidance specifically requires that “[p]eople in California must wear face coverings when they are outside of the home” unless one of the limited exemptions apply. The guidance exempts “[p]ersons who are working in an office or in a room alone,” but provides no exemption to a circumstance where a fully vaccinated individual may be working in an office or in a room with another individual, whether that individual is fully vaccinated or not.
As a result, employers must continue to require that fully vaccinated individuals wear face coverings pursuant to the CDPH guidance, including where two fully vaccinated employees are working together or in a car together.
Requirement to Quarantine Applies to Fully Vaccinated Employees
The CDC guidance also conflicts with the Cal/OSHA COVID-19 regulations concerning the requirement that employees quarantine, and be excluded from the workplace, following a “close contact” exposure. The current and operative regulations require that employers “exclude employees with COVID-19 exposure from the workplace for [10] days[10] after the last known COVID-19 exposure to a COVID-19 case.”[11] The Cal/OSHA COVID-19 regulations, like the CDPH face covering guidance, do not exempt vaccinated employees.[12], [13]
As a result, unless and until Cal/OSHA updates the COVID-19 regulations to exempt vaccinated individuals from the regulations generally, or from the quarantine requirements specifically, employers must continue to exclude vaccinated employees from the employer’s worksites and facilities for 10 days following a fully vaccinated individual’s “close contact” COVID-19 exposure.
Testing Obligations Continue to Apply to Fully Vaccinated Individuals
While there is not an inherent conflict between the CDC guidance and the Cal/OSHA COVID-19 regulations concerning the testing of fully vaccinated individuals, employers should be mindful of their ongoing obligation to offer employees, including fully vaccinated employees, COVID-19 testing following certain circumstances set forth in the regulations.
Under the Cal/OSHA COVID-19 regulations, employers must “offer”[14] COVID-19 testing to individuals who had “close contact” exposures[15] or who work at worksites where there was a COVID-19 outbreak.[16] While the CDC guidance makes clear that fully vaccinated individuals do not need to be tested for COVID-19 following contact with someone with COVID-19, whether as the result of a “close contact” exposure or a workplace outbreak, employers must continue to offer fully vaccinated employees such testing in such circumstances in order to ensure regulatory compliance.
Conclusion
Employers must continue to follow the most restrictive applicable requirements, and, therefore, must continue to comply with the CDPH and Cal/OSHA requirements concerning face coverings and quarantines.
Liebert Cassidy Whitmore attorneys are available to assist employers that have any questions about this guidance.
[1] The CDC provides that an individual is “fully vaccinated” if they satisfy one of the following two criteria: (1) two weeks have passed since the individual received their second dose of a vaccine requiring two doses (i.e., the Pfizer/BioNTech and Moderna vaccines); or (2) two weeks have passed since the individual received the single dose of a vaccine requiring only one dose (i.e., the Johnson & Johnson vaccine).
[3] While the CDC guidance applies primarily to private interactions, it is not expressly limited to such circumstances.
[4] The CDC provides that certain individuals are or may be at increased risk for a severe COVID-19 illness if they have certain health or medical conditions or other conditions. Specifically, the CDC identifies that individuals with the following conditions are at increased risk of a severe COVID-19 illness: (1) Cancer; (2) Chronic kidney disease; (3) Chronic obstructive pulmonary disease (COPD); (4) Down syndrome; (5) Heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies; (6) Immunocompromised state from solid organ transplant; (7) Obesity (body mass index (BMI) over 30 kg/m2, but under 40 kg/m2); (8) Severe obesity (BMI over 40 kg/m2); (9) Pregnancy; (10) Sickle cell disease; (11) Smoking; and (12) Type 2 diabetes mellitus. The CDC also identifies that individuals with the following conditions may be at an increased risk of a severe COVID-19 illness: (1) Asthma (moderate-to-severe); (2) Cerebrovascular disease: (3) Cystic fibrosis; (4) Hypertension or high blood pressure; (5) Immunocompromised state from a blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines; (6) Neurological conditions, such as dementia; (7) Liver disease; (8) Overweight (BMI under 25 kg/m2, but under 30 kg/m2); (9) Pulmonary fibrosis; (10) Thalassemia; and (11) Type 1 diabetes mellitus.
[5] The CDC provides the following symptoms associated with COVID-19: (1) fever or chills; (2) cough; (3) shortness of breath or difficulty breathing; (4) fatigue; (5) muscle or body aches; (6) headache; (7) new loss of taste or smell; (8) sore throat; (9) congestion or runny nose; (10) nausea or vomiting; and (11) diarrhea. (See CDC “Symptoms of Coronavirus,” https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (Last updated on February 22, 2021.))
[6] 8 C.C.R §§ 3205-3205.4.
[7] See 8 C.C.R §§ 3205(c)(10)(A)-(B).
[8] Employers should note that the Cal/OSHA convened an advisory board to make recommendations to the Occupational Safety and Health Standards Board (OSHSB) concerning amendments to the Cal/OSHA COVID-19 regulations (8 C.C.R §§ 3205-3205.4). (See Department of Industrial Relations (DIR) “Virtual Meeting,” https://www.dir.ca.gov/dosh/DoshReg/covid-19-emergency-standards/.) The advisory board discussed the updated CDC quarantine guidance. It is likely that that OSHSB will amend the regulations and, as part of such amendments, the Board may amend the regulatory provision concerning quarantines.
[10] Executive Order N-84-20 reduced the regulatory requirement to quarantine from 14 to 10 days following a “close contact” exposure. (See Executive Order N-84-20, Paras. 7 and 8,)
[11] 8 C.C.R § 3205(c)(10)(B).
[12] See 8 C.C.R § 3205(a).
[13] See Cal/OSHA “COVID-19 Emergency Temporary Standards (Cal/OSHA COVID-19 regulations) Frequently Asked Questions,” “Vaccines” No. 1 [“For now, all prevention measures must continue to be implemented [for vaccinated persons]. The impact of vaccines will likely be addressed in a future revision to the ETS.”], https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#scope (Last updated on February 26, 2021.)
[14] See Cal/OSHA “COVID-19 Emergency Temporary Standards (Cal/OSHA COVID-19 regulations) Frequently Asked Questions,” “Testing” No. 2 [“Is there a difference between ‘offer testing’ and ‘provide testing’ in the ETS? No. The meaning is the same for both terms.”] https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#scope (Last updated on February 26, 2021.)
[15] 8 C.C.R. § 3205(c)(3)(B)(4).
[16] 8 C.C.R. § 3205.1(b)(1).
