New CDC guidelines for fully vaccinated people complicates office reentry planning

On Tuesday, the CDC announced updated guidance for people who have been fully vaccinated in light of the potentially more transmissible delta variant. Amid the rise of COVID-19 mutants and plateauing inoculation rates, the latest CDC guidelines could have executives reassessing office reentry timelines, policies and vaccine mandates as the pandemic approaches a potential fourth wave.

“Before the delta variant it seemed office reentry was a given, now employers are weighing the health and safety of their employees with the needs of the business and trying to find creative ways to ensure both are met,” said Teresa Bartlett, MD, senior medical officer at Sedgwick.

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Office reentry: Mandates, mutations and masking

With the switch to remote work and online learning, the home has pulled double-duty as an office and learning center. As a result, many professionals have also acted as caregivers for members of their households during the remote workday, complicating office reentry timelines. 

At the moment, many schools are planning to host in-person learning this fall, enabling some caregivers to go back to the office in the weeks ahead.

“For months, some businesses have looked at a September [or] October reentry into the office to coincide with school being back in session. With the rise of the delta variant, some businesses are pausing their plans to go back into the office,” said Niki Jorgensen, director of service operations at HR provider Insperity.

Additionally, she said companies should “remain flexible and informed as the situation evolves,” adding that health “information is constantly changing.”

To promote social distancing and limit the number of employees on-site, companies have set caps on conference room spaces and redrawn office layouts over the last year. Some employers may implement a “hoteling policy” at the office, where companies limit office occupancy and ensure adequate “spacing between employees,” Bartlett explained, while reiterating the importance of communicating office reentry plans to employees.

“Many employees have found it very challenging trying to balance work and family. The most important thing is to communicate the expectation with employees well in advance so they have time to plan,” Bartlett said.

Return to work conflict and policy

Bringing employees back to the office mid-pandemic and mandating vaccination as part of employment presents no shortage of legal considerations for companies. At the same time, a number of employers are concerned about potential conflict with employees regarding office reentry policies.

According to LaSalle Network’s March Office Re-Entry Index, 52% of respondents were not planning to mandate employee vaccinations and this number jumped to 69% when the second index was published in July. The rise of the potentially more contagious delta variant and new CDC guidelines could shift employer and employee stances on in-house vaccination mandates.

“There may be an uptick in organizations requiring vaccines. However, we are seeing mostly public-facing companies such as banks, sales and medical offices requiring vaccines versus those organizations that are not as public facing,” Jorgensen said.

A number of organizations have implemented what she described as the “middle ground vaccine mandate,” meaning unvaccinated employees undergo weekly tests and masking is required.

From a legal perspective, how do the latest CDC guidelines impact office reentry plans?

“The legal considerations for employers managing the COVID-19 pandemic and returning their employees to the workplace have largely remained constant in my view,” said Mark Sommaruga, an attorney in the labor, employment law and employee benefits practice at Pullman & Comley.

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In general, Sommaruga said some recent court decisions have upheld employer’s ability to mandate employee vaccinations; albeit with certain exceptions based on disabilities and religion, adding that this is consistent with the Equal Employment Opportunity Commission guidance about reasonable accommodations.

While companies will have to obey state and local mandates, Sommaruga said the latest CDC recommendations “might give employers pause,” and cause them to maintain or reinstate in-house masking policies; especially companies in areas with higher rates of transmission.

“I would think that at the very least, the [CDC’s] recent guidance reminds employees of the need to ensure some level of precautions in the workplace against COVID-19,” he added.

Additionally, Barlett said employers should be “mindful of specific circumstances with individuals who have chronic conditions and make [accommodations] for them” to work remotely and “prevent exposure.” However, she added that these situations highlight responsibility for more than employers.

“If an employee is requesting special treatment they should also protect themselves from a personal perspective and ensure they are avoiding large social crowds and mitigating their risk,” Barlett said.

FDA vaccination approval

In recent days, there have been a number of high-profile announcements in both the private and public involving vaccine mandates for workers in certain industries and federal employees. Last week, the American Medical Association announced support of moves to require vaccination for healthcare employees. On the same day, the Department of Veterans Affairs announced COVID-19 vaccine mandates for its employees.

“We have seen a big shift from suggesting the vaccine to requiring the vaccine. Employers need to ensure the health and safety of all workers in the workplace and that is why I believe they are beginning to require it,” Bartlett said.

To date, the Food and Drug Administration has granted emergency use authorization for a select number of coronavirus vaccines. These inoculations garnering full FDA approval could also increase the number of employers mandating vaccinations on-site.

“Once the FDA moves from emergency use to full approval of the vaccines, [we] may see more employers may mandate it. Some have been hesitant thus far until they have the full approval which is anticipated in September of 2021,” Bartlett said.

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