If there is anything we’ve learned about COVID-19’s impact on businesses over the last 18 months, it’s that change is the only constant. Changes in economic conditions, variants of the virus, and shifts in workplace guidance from government agencies have all required business leaders to study the issues and best practices, and make the best decisions for their organizations.
With COVID numbers on the rise, reportedly due to the “Delta” variant, businesses are again confronted with making decisions about mask-wearing policies in the workplace. Masking is back at the forefront of discussion following July 27, 2021, revised guidance from the Centers for Disease Control and Prevention (“CDC”) recommending that even fully vaccinated individuals should resume wearing masks in “public indoor settings” in areas of the U.S. that have “substantial” or “high” COVID-19 transmission rates.
It was only a few months ago, in May, 2021, that we reported CDC guidance that fully vaccinated individuals could stop wearing masks and discontinue physical distancing in most settings, except in hospitals, on public transit or in other specified places.
What this Means for Businesses
It is important to note that the CDC’s new recommendation regarding mask-wearing is not a mandate. However, many businesses have chosen to base their COVID-19 workplace safety policies during the pandemic on the CDC’s guidance. Accordingly, for businesses that intend to follow the revised guidance, it’s important to understand the meaning of certain terms used therein in order to implement appropriate policies.
The revised guidance does not define the meaning of “public indoor settings” where it recommends masks be worn. However, the CDC has previously distinguished public settings from private household settings. Because the CDC’s guidance is not a mandate, businesses evaluating workplace policies should consider their particular circumstances, including issues such as the size of their workforce located within an indoor setting, local rates of transmission, and the percentage of workers vaccinated, among other factors.
The revised guidance does define the term “substantial or high transmission rates.” It refers to two metrics, considered separately:
- the rate of new COVID-19 cases per 100,000 people; and,
- the positivity rate.
Both CDC metrics are based on measurements looking back in time over the preceding seven days.
“Substantial” transmission is defined as 10-50 cases per 100,000 residents or a positivity rate between 5-8 percent.
“High” transmission is 100 or more cases per 100,000 or a positivity rate of 10 percent or higher.
The CDC has created a COVID-tracker map that can be viewed to determine transmission rates by county. In Michigan, as of August 11, 2021, a majority of counties have substantial or high transmission rates.
We recommend that businesses continue to monitor federal, state and local guidelines and/or mandates in order to evaluate and implement appropriate workplace safety policies. If you have any questions, or require assistance, please contact please contact Dave Houston or your Fraser Trebilcock attorney.
This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.
Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or firstname.lastname@example.org.