New CDC Vaccination Guidance – 
Implications for CAAs

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) released updated safety guidance for people fully vaccinated against COVID-19. In a major departure from its past guidance, the CDC states that fully vaccinated people do not need to wear a mask or physically distance in any indoor or outdoor setting, unless required by federal, state, local, tribal, or territorial laws, rules, or regulations. The new guidance also clarifies that fully vaccinated people do not need to test, quarantine, or be restricted from work following a known exposure to COVID-19, if they are asymptomatic, unless they are residents or employees of a correctional or detention facility or a homeless shelter. However, they should still monitor for COVID-19 symptoms for 14 days following an exposure.

The CDC guidance continues to stress that local business policies and workplace guidance should still be followed by fully vaccinated people. Vaccinated individuals who exhibit symptoms consistent with COVID-19 should also quarantine and get tested for COVID-19.

Implications of the CDC Guidance

Below, we address a few key questions that CAAs may have regarding the new CDC guidance:

1. Are CAAs required to follow the CDC's guidelines?

No, the CDC guidance explicitly notes that other federal, state, and local laws, as well as local workplace and business guidance, may continue to require that vaccinated individuals wear a mask, physically distance in indoor and outdoor settings, and quarantine or get tested following a known exposure to COVID-19. For now, the federal Occupational Safety and Health Administration (OSHA) workplace safety guidelines still recommend that employers use social distancing in communal work areas and face coverings, as well as send potentially infected employees home, to limit the spread of COVID-19 in the workplace. Further, CAAs may follow their own policies requiring masks in indoor settings for employees, clients, and members of the public.

In general, a CAA facing conflicting COVID-19 guidelines should first consider whether any are binding, and whether there are any penalties associated with noncompliance. Both the CDC’s and OSHA’s guidance are recommendations and thus non-binding on employers. State and local orders, however, may carry different levels of authoritativeness and be accompanied by penalties for failure to comply. In some cases, local and state orders are intentionally designed to be stricter than the guidance issued by the CDC. Typically, this is because of the scope and severity of COVID-19 transmission in a particular state or locale.

2. How does the CDC guidance impact our CAA's liability considerations?

The new CDC guidance should not change a CAA’s liability analysis. If someone such as an employee, client, or visitor who contracts COVID-19 brings a claim alleging your CAA was negligent and failed to take reasonable steps to prevent the spread of COVID-19, your CAA has a stronger defense if it can show that it followed the strictest guidance—local, state, or federal. However, following the stricter guidelines may not always be a viable or reasonable approach. Each CAA should, thus, consider whether it satisfied its duty to act reasonably by deviating from the state and local guidance, since the state and local recommendations presumably consider factors that are specific to and reasonable for your community.

Another consideration for a CAA is if following the CDC’s guidance could lead to increased COVID-19 transmission in the workplace and hence, workers’ compensation claims. Workers’ compensation is typically a “no-fault” system, meaning that an employee making a workplace injury claim does not need to show that the employer was negligent in any way. Rather, the claim typically depends on the employee showing that he/she was injured at work and that the injury was sufficiently related to the scope of employment. Workers’ compensation claims for COVID-19 cases will be dictated by each state’s workers' compensation laws and any adjustments that may have been made to address the pandemic.

3. Can we ask our employees whether they have been vaccinated?

Yes. Asking employees whether they have been vaccinated as a condition of returning to the workplace does not constitute a medical examination or disability-related inquiry under the Americans with Disabilities Act (ADA), as the question is unlikely to solicit protected medical information. CAAs may also ask for proof of vaccination, so long as the proof requested does not contain protected medical information. The CDC COVID-19 Vaccination Record Card does not typically include any protected medical information.

However, CAAs should avoid asking follow-up questions such as “if you are not vaccinated, why?”, as these questions likely constitute a disability-related inquiry under the ADA.

CAAs collecting documentation of employee vaccination, including copies of employees’ vaccination record cards, should also store these documents in a confidential file separate from the employees’ general personnel files.

4. Should our CAA mandate that all employees get vaccinated?

Generally speaking, under federal law, employers are free to require employees to be vaccinated as long as they properly consider medical accommodation requests under the ADA and religious accommodation requests as mandated by Title VII of the Civil Rights Act of 1964 (Title VII). States may also have their own laws affording greater protection to employees with disabilities and prohibiting discrimination. CAAs should consider federal and state guidance, as well as details particular to their organization, when determining whether to require employee vaccinations.

CAAs considering a mandatory vaccination program should also consult local counsel and ask themselves whether a mandatory vaccine program is necessary in light of alternative preventative measures (e.g., remote work, altered job duties, availability of PPE, etc.). If a CAA determines that a vaccine mandate is necessary, it should consider whether the mandate should be narrowly applied to situations where alternative measures are not viable. The CAA should also prepare to review and administer medical and religious accommodation requests, formulate a deadline for vaccination and disciplinary procedures for non-compliance, and consider providing employees with a vaccine directly. Organizations employing a unionized workforce will likely need to negotiate with the union in implementing a vaccine mandate pursuant to the National Labor Relations Act.

5. Will we be liable if our CAA mandates vaccinations and an employee has an adverse reaction to the vaccine?  

CAAs are likely protected from liability for employees’ adverse reactions to the vaccine under the Public Readiness and Emergency Preparedness Act of 2005 (the PREP Act). The PREP Act offers liability immunity via a declaration by the Secretary of Health and Human Services to certain covered persons against claims of loss caused by, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats, and conditions determined to constitute a present or credible risk of a public health emergency. These countermeasures include vaccines, and covered persons include what the Act calls “program planners”, which include entities that “establish requirements or provide policy guidance” with respect to vaccines.

The Secretary of Health and Human Services released a PREP Act declaration for COVID-19 on March 17, 2020, and so most employers are protected from liability where they implement a COVID-19 vaccine mandate and an employee has an adverse reaction to the vaccine.  However, it should be noted that the PREP Act’s liability immunity does not apply where the employer engages in willful misconduct with respect to the vaccine mandate that results in an injury to an employee.

6. Can we use our CSBG funds for vaccine awareness efforts? 

CAAs conducting employee and community vaccine awareness efforts may choose to support such activities with CSBG funds. In Information Memorandum 161, the Office of Community Services states that CSBG CARES and regularly-appropriated CSBG funding may be used to support fair and equitable COVID-19 vaccination efforts and related activities. CAAs may implement CSBG-funded public health activities, including the promotion of COVID-19 vaccinations, based on the results of local community needs assessments, which may include a review of health outcomes and available health care resources. In addition, CAAs may partner with other organizations serving low-income residents, including public health departments, religious organizations, charitable groups, and community organizations, in supporting vaccination efforts.

This News Flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.