On May 13, 2021, the CDC announced new guidelines rolling back the vast majority of its masking requirements for fully vaccinated individuals during the COVID-19 pandemic. With few exceptions, the fully vaccinated no longer need to wear masks indoors or outdoors. In March 2021, Acting Secretary of Health Alison Beam incorporated the CDC’s guidance on masking for fully vaccinated individuals into the Pennsylvania Department of Health’s masking order.
What the CDC Order Provides
The CDC order states that fully vaccinated individuals may return to normal, pre-pandemic activities, both indoors and outdoors, without the need to wear masks, maintain social distance, or limit activities to within the household. It is important to note, that these new rules do not apply to public transportation, whether nationally or internationally, and do not apply in the healthcare setting.
A fully vaccinated person is anyone, regardless of age, who is two weeks past their first dose of a single-dose vaccine or second dose of a two-dose vaccine. If a person does not meet this definition, the new rules do not apply to them.
Even for the fully vaccinated, the new CDC rules still require masks to be worn on public transportation such as buses, planes, and trains. International travelers still must comply with any country of destination and pre-return trip testing requirements.
Because of the increased likelihood of the rapid spread of infections in certain settings, the CDC guidance does not apply to healthcare settings, and the CDC still warns for increased caution in congregate care settings such as correctional facilities and homeless shelters.
How Businesses Should Respond
Businesses may now allow their fully vaccinated employees and customers, to work and to patronize businesses without wearing masks. However, businesses are also still empowered to set conditions and requirements for employees and customers that enter the business premises. Businesses may still direct the conduct of customers and employees on their private property. The rule – no shirt, no shoes, no service – could also include masks.
When adopting a mask policy, businesses should keep in mind that employees and customers still may have religious or disability related exemptions from wearing a mask or taking a vaccine.
Employers are allowed to ask employees if they are vaccinated. However, employers must remember that pursuant to the Americans with Disabilities Act all medical information pertaining to employees, including vaccination history, is confidential and must be treated as such. Pursuant to the CDC guidance, employees who are not vaccinated should be required to wear a mask while working indoors.
Businesses may ask patrons if they are vaccinated; however, given the above noted exemptions and the difficulty verifying whether an individual is in fact vaccinated, such a step may prove too difficult to enforce. Businesses may simply post signage stating that non-vaccinated individuals are still required to wear masks.
Businesses should not forget that it is still prudent from a liability perspective to deny entry into a business premises those employees and customers that are actively exhibiting symptoms of COVID-19. Businesses may still require temperature checks or ask questions regarding symptoms to any patron or employee prior to entry.
As to what we can expect in the future: Governor Wolf announced in early May that all mitigation orders will be lifted on Memorial Day, Monday, May 31, and any remaining masking order will be lifted when 70% of Pennsylvania adults are fully vaccinated.
This update was prepared by Attorneys Jeff Worley and Ian Brinkman. This update does not constitute legal advice and has been prepared for informational purposes only. Please contact us directly with questions about your specific situation.