By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIAdam R. YoungA. Scott HeckerIlana MoradyPatrick D. JoyceDaniel R. BirnbaumMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: On July 27, 2021, the CDC revised its mask guidance in response to the burgeoning threat of the COVID-19 Delta variant, recommending that all individuals — including those who are vaccinated — wear masks indoors in public in areas of “high” or “substantial” transmission.

Once considered a watershed moment in the nation’s fight against the COVID-19 pandemic, the CDC announced in May 2021 that fully vaccinated individuals were no longer required to wear a mask in most outdoor and indoor settings. Unfortunately, as the COVID-19 Delta variant spreads among the unvaccinated, and even some vaccinated populations, the CDC changed course and now recommends that “to maximize protection from the Delta variant and prevent possibly spreading it to others, wear a mask indoors in public if you are in an area of substantial or high transmission.”  According to the CDC, substantial or high transmission includes any county where there are more than 50 cases per 100,000 people in the area, over a seven-day period, or that the COVID-19 test positivity rate is higher than 5%.

Individuals and employers can track here whether their county is deemed an area of “high” or “substantial” transmission.  A considerable swath of the US is currently seeing “high” (red) or “substantial” (orange) rates of transmission, where masks are now advised indoors in public for all individuals, regardless of vaccination status.  In the remaining pockets of “moderate” (yellow) and “low” (blue) transmission, the CDC’s recommendation does not currently apply to fully vaccinated individuals.

While this presents a frustrating reversal for vaccinated individuals and employers who have adjusted their protocols in recent weeks, the revised guidance is ultimately limited to “indoors in public.”  The CDC does not define a “public” place, which appears to give employers in non-public facing environments continued discretion in enforcing mask requirements for vaccinated employees.  Nonetheless, employers should prepare for the possibility that many state and local governments will act on the CDC’s guidance and reinstate recently-lifted indoor masking requirements for vaccinated individuals.

For instance, just this week, California state officials announced that it will require all state employees to prove they’ve been vaccinated, or otherwise will wear a mask in the office and get tested for the coronavirus at least once a week. New York City will begin requiring COVID vaccinations or weekly testing of all workers in its public hospitals and clinics in an attempt to slow an increase in cases.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.