As more employees across the country have received the COVID-19 vaccination, employers are naturally asking questions.  Should we continue to maintain preventive measures (masking, distancing, gathering restrictions)?  Can we relax the COVID-protocols, at least with respect to vaccinated employees?  Recent guidance from government authorities would suggest that employers continue most preventive measures.

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) issued guidance to employers.  In Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, [https://www.osha.gov/coronavirus/safework] OSHA specifically noted that, for now, employers should not distinguish between workers who are vaccinated and those who are not.  OSHA stated:

Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

On March 8, 2021, the Centers for Disease Control (CDC) issued guidance for the non-healthcare setting regarding individuals who have been fully vaccinated.  In this guidance (Interim Public Health Recommendations for Fully Vaccinated People [https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html]), the CDC instructs that fully vaccinated people should still follow precautions (masks, distancing, etc.) when “in public” and also suggests employees should still follow employers’ guidelines.

For the purposes of the CDC’s guidance, people are considered fully vaccinated for COVID-19 two weeks after receiving the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or two weeks after they have received a single-dose vaccine (Johnson and Johnson (J&J)/Janssen).

In the guidance, the CDC noted that fully vaccinated people can:

  • Visit with other fully vaccinated people indoors without wearing masks or physical distancing;
  • Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
  • Refrain from quarantine and testing following a known exposure if asymptomatic.

But the CDC also noted that fully vaccinated people should continue to:

  • Take precautions in public like wearing a well-fitted mask and physical distancing;
  • Wear masks, practice physical distancing, and adhere to other prevention measures when visiting with unvaccinated people who are at increased risk for severe COVID-19disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease;
  • Wear masks, maintain physical distance, and practice other prevention measures when visiting with unvaccinated people from multiple households;
  • Avoid medium- and large-sized in-person gatherings
  • Get tested if experiencing COVID-19 symptoms;
  • Follow guidance issued by individual employers; and
  • Follow CDC and health department travel requirements and recommendations

The CDC noted that how long vaccine protection lasts and how much vaccines protect against emerging SARS-CoV-2 variants are still under investigation. Until more is known and vaccination coverage increases, some prevention measures will continue to be necessary for all people, regardless of vaccination status. However, the benefits of reducing social isolation and relaxing some measures such as quarantine requirements may outweigh the residual risk of fully vaccinated people becoming ill with COVID-19 or transmitting SARS-CoV-2 to others. Additionally, taking steps towards relaxing certain measures for vaccinated persons may help improve COVID-19 vaccine acceptance and uptake.

Guidance from certain state authorities has expressed similar instruction that preventive measures be maintained.  For example, the California Department of Industrial Relations in its FAQ on California’s required COVID Emergency Temporary Standards (ETS) (https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html) noted the following:

Q:          Once an employee is vaccinated, must the ETS still be followed for vaccinated persons?

A:          For now, all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.

Given the guidance from OSHA, the CDC and various state authorities, an employer might consider modifying certain preventive protocols, such as to allow fully vaccinated employees to meet together without masks or distancing.  However, given the clear instruction that preventive measures generally be continued, risk avoidance concerns suggest maintenance of preventive measures is the best practice given the still early stage of the vaccination process.

Premature relaxation of preventive measures, before the risk of COVID transmission is more fully under control, may present the following issues:

  • Employee morale issues and safety concerns;
  • Reduced safety compliance with the COVID precautions generally;
  • Potential safety complaints to OSHA / resulting audits;
  • Discrimination / disparate treatment concerns (e.g., “you [person in high risk category] can’t come to the meeting / working lunch / happy hour because you haven’t been vaccinated yet and the rest of us don’t want to wear masks”); and
  • Potentially inappropriate discussions in the workplace (e.g., discussions regarding religious or disability requests for accommodations).

For now, the prudent approach would be to continue all previously recommended preventive measures such as masking, shielding, social distancing, meeting and gathering restrictions, and cleaning protocols, and wait for more clear guidance that such measures can be lifted.

BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html