The Centers for Disease Control (“CDC”) caused a stir on May 13, 2021, when it issued its “Interim Public Health Recommendations for Fully Vaccinated People.” This guidance allows fully vaccinated individuals to forgo wearing masks and some social distancing protocols in certain circumstances. It is a welcome relief for many, but came as a surprise to state and local governments and the businesses currently operating under COVID protocols.

Now, the State of California has announced that on June 15, 2021, it will bring its Blueprint for a Safer Economy guidance into line with the CDC guidance. Local governments may also follow suit by that date or shortly after.

This article describes the CDC guidance in detail so that California businesses can anticipate the coming changes. It also offers guidance regarding recent updates to local health orders. Finally, the article provides key compliance points for businesses to follow during this transition period to a fully open economy.

CDC guidance

The Interim Recommendations modify the CDC’s guidance on the use of masks and other social distancing protocols. The Interim Recommendations apply to “fully vaccinated” people, which means a person who has received the full course of shots at least two weeks in the past. The CDC recommends that fully vaccinated people can:

• Resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance
• Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
• Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States
• Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings
• Refrain from quarantine following a known exposure if asymptomatic
• Refrain from routine screening testing if feasible

The CDC continues to recommend that individuals get tested if experiencing COVID symptoms, and follow CDC and health department travel requirements and recommendations. Unvaccinated individuals should continue to follow prevention guidelines.

Updates to state and local orders

The State of California announced that it will bring its state-wide guidance into conformity with the CDC guidance by June 15, 2021. This aligns with its announced plan to lift restrictions that limited business activity in the state on this date. This is likely to mean that unvaccinated individuals will be allowed to cease following social distancing protocols and wearing masks, both indoors and outdoors.

Some locations have already made modest updates to local rules. On May 18, 2021, the City of Los Angeles issued a new health order that allows fully vaccinated people to forgo wearing masks when outside and alone, when in small groups with other fully vaccinated people, and when in a small group of people that are no full vaccinated but also not at high risk.

The County of Santa Clara also issued new guidance addressing the fully vaccinated population. The order mandates that businesses require that employees who are not fully vaccinated continue to wear masks when on the business premises. The order also requires that businesses survey their employees by June 1 to determine their vaccination status.

Other local governments are likely to follow these trends. In the meantime, it is important that businesses continue to follow the applicable state and local rules while they are in effect.

Key compliance points during transition

While we are in this transition period, businesses should follow these key compliance points:

1. Understand your applicable orders. Every business should know which state and local guidelines apply to them, and watch for updates in the coming weeks and months.
2. Continue to follow the applicable orders. COVID-fatigue is surely setting in for many employees, but local and state orders remain enforceable and violations of the applicable orders can create legal liability.
3. Consider asking employees their vaccination status. This Coffee Break edition includes an article regarding asking employees about vaccination status. There are important legal issues to keep in mind, but knowing their employees’ status will help businesses make decisions about COVID protocols going forward.
4. Limiting liability should remain a top priority. Even as state and local orders change, continuing to follow some effective prevention measures may be wise, depending on the businesses particular circumstances. In particular, businesses that have a high number of unvaccinated employees should carefully consider whether changes to social distancing and mask-wearing rules should remain in place even when orders change.

Bottom Line

It is time to reevaluate businesses’ COVID protocols. The attorneys of Scali Rasmussen are here to help you navigate these issues in a manner that will limit your legal exposure.