My Employee is Fully Vaccinated: Now What?
In a previous alert, the firm’s Labor & Employment Group tackled Six FAQs About Employer COVID-19 Vaccination Policies in New York. That alert provides a good overview of some of the basic questions that employers may have about making a vaccination policy mandatory as well as providing incentives or encouragement for employees to get the COVID-19 vaccine.
But what does the federal and state guidance say about safety and quarantine protocols for those employees who have been fully vaccinated? We address those questions – as best we can – below. We also provide a reminder about consistently applying health and safety protocols in the light of increased enforcement activity by federal and state authorities.
1. Must individuals who are fully vaccinated against COVID-19 quarantine if they have been in close contact with someone who has a confirmed case of the virus?
According to guidance recently updated by the Centers for Disease Control and Prevention (CDC), the answer is no . . . but it is imperative for you to check your state and local guidelines.
The CDC now says that vaccinated persons with an exposure to someone with suspected or confirmed COVID-19 are not required to quarantine if they meet all of the following criteria:
- Are fully vaccinated (i.e., ≥2 weeks following receipt of the second dose in a 2-dose series, or ≥2 weeks following receipt of one dose of a single-dose vaccine);
- Are within 3 months following receipt of the last dose in the series; and
- Have remained asymptomatic since the current COVID-19 exposure.
When the CDC initially published the guidance on February 11, New York Governor Cuomo issued a statement that “quarantine requirements only for New Yorkers who have received both shots will be similarly updated to reflect the CDC's new guidance.” Yet, a couple of weeks have gone by and New York has not updated its guidance.
To make things more confusing, local health departments have been told by the state that they may move forward with adopting the recommendations. A few counties, such as Chautauqua County and Clinton County, have formally adopted the updated CDC guidance. A recent news report and a call to the Erie County Department of Health (ECDOH) COVID-19 Information Line confirm that Erie County is following the updated CDC approach, however, there is no official announcement of this change on the ECDOH website as of this time this alert was published.
UPDATE: The day following publication of this alert, ECDOH formally updated its guidance, which can be found here.
The ECDOH guidance generally tracks the three CDC criteria set forth above, but includes four exceptions to the guidance for fully vaccinated persons:
- The above 3 criteria are not met
- International travel including Canada
- Fully-vaccinated hospitalized persons
- Fully-vaccinated residents of healthcare settings
As explained by the ECDOH:
If you fall into one of the above exceptions, you need to quarantine in accordance to previously issued New York State Quarantine Guidance. The last two exceptions are due to the unknown vaccine effectiveness in these specific populations, the higher risk of severe disease and death, and challenges with social/physical distancing in healthcare settings.
Employers in Erie County should also take note that ECDOH added “Quarantine Guidance for Persons who Recovered from a COVID-19 Infection.”
While there will be temptation to return fully vaccinated employees to the office, employers are well advised to check with their local health departments for the most up-to-date guidance on quarantines.
2. Does being fully vaccinated exempt an employee from New York’s Travel Advisory?
The short answer appears to be no . . . but check your local health department guidelines for further guidance.
New York’s Travel Advisory was updated last November to scrap the previous list of designated states requiring a quarantine in favor of a testing-based approach that now allows a traveler to “test out” of the mandatory 14-day quarantine period (which was later reduced to 10 days). You can read about it in our prior alerts available here and here.
A number of states, including Vermont, Alaska, and Hawaii, have recently announced plans to lift restrictions for domestic travelers who have had both doses of the vaccine. To date, the New York State Department of Health has not updated its Travel Advisory website or issued new guidance. According to media reports, travelers must still follow the testing and quarantine protocols, even if they have received both doses of the vaccine. But we note that the recently issued guidance for Erie County, set forth above, states that it applies to fully vaccinated individuals who have “traveled to a U.S. state other than those contiguous to New York,” suggesting such individuals are exempt from NY's Travel Advisory. Chautauqua County’s press release contained similar language. In contrast, Clinton County’s updated guidance noted that “NYSDOH has not issued new travel guidelines for vaccinated individuals.” Stay tuned.
3. Should an employee who has been fully vaccinated still wear a mask and practice social distancing in the workplace?
Finally, a question for which we have a clear answer.
At the end of January, the Occupational Safety and Health Administration (OSHA) issued guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”, which states that “[w]orkers 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’s website and a statement from Governor Cuomo’s office have reached the same conclusion.
Stay Vigilant About Health and Safety Protocols
The above discussion about mask wearing also serves as a reminder – nearly a year into this pandemic with “mask fatigue” on the rise – that businesses must be especially mindful of the need to adhere to health and safety protocols. For example, on February 23, OSHA issued a press release concerning a citation to a Missouri auto parts manufacturer for failing to implement and enforce coronavirus protections in a case where exposure led to a press operator’s death. According to the press release:
Two machine operators at a Grandview auto parts manufacturer who jointly operated a press tested positive for the coronavirus just two days apart, in late August 2020. The two workers typically labored for hours at a time less than two feet apart; neither wore a protective facial mask consistently. Ten days later, two more workers operating similar presses together tested positive. On Sept. 19, 2020, one of the press operators fell victim to the virus and died.
The company faces proposed penalties totaling $15,604.
Under the Biden Administration, we expect to see increased enforcement of COVID-19 safety protocols by OSHA. The State Attorney General recently sued Amazon for allegedly failing to protect workers during the COVID-19 pandemic. Employers are increasingly facing retaliation claims from employees who suffered an adverse employment action shortly after raising a workplace safety concern.
In short, now is the time for businesses to dust off those COVID-19 Safety Plans that they unveiled last year and continue a dialogue with their workforce on all of the things they are doing to keep their workplace safe.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.
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Joseph S. Brown – [email protected]
Ann E. Evanko – [email protected]
Katherine L. Wood – [email protected]