Return of the Masks:
CDC Response to the Delta Variant

On Tuesday, July 27, the Centers for Disease Control and Prevention (CDC) issued new guidance for vaccinated and unvaccinated Americans regarding the COVID-19 pandemic. The new guidance recommends that fully vaccinated individuals wear face coverings in indoor public spaces in areas of “substantial” or “high” transmission, defined as areas experiencing at least 50 new cases of COVID-19 per 100,000 people in the past 7 days. A map showing current transmission levels by county is available here.

Other measures recommended by the new guidance include:

• Masking for vaccinated individuals who are immunocompromised or at increased risk of disease, regardless of the transmission rate in their area;
• Testing for vaccinated individuals 3-5 days after a known exposure to someone with a suspected or confirmed case of COVID-19, along with masking for 14 days after exposure or until receiving a negative test result;
• Universal masking among teachers, staff, students, and school visitors, regardless of vaccination status; and
• Continued masking and social distancing by unvaccinated individuals, regardless of health status or local transmission rates.

These recommendations represent a departure from CDC guidance issued in May recommending an easing of restrictions on vaccinated people. This latest guidance highlights the severity of the threat posed by the delta variant around the country and the world.

On Wednesday, July 28, numerous federal agencies followed the CDC’s guidance at the instruction of the Office of Management and Budget (OMB) and implemented mask mandates on federal agency property in areas of substantial or high transmission rates. These mandates apply to agency employees, contractors, and visitors physically on-site at agency property. The new federal mandates do not apply to federal grantees. However, many states and localities are expected to update their own requirements and recommendations in response to the CDC’s guidance.

CAAs should review and update their mask policies in light of the requirements and prohibitions imposed by state and local governments, in conjunction with the CDC’s new guidance. Factors to consider include:

• Whether there are state or local requirements with respect to mask wearing or mask mandates that CAAs must comply with. Currently, there is no federal mask requirement that applies to federal grantees.
• Whether state or local orders prohibit private (i.e., non-government) employers from distinguishing between vaccinated and unvaccinated employees.
• Whether state or local orders prohibit private employers from mandating masks for employees, customers, or other members of the public. Note that there are a number of states that prohibit government entities and officials from requiring masks, such as parts of Arizona, Arkansas, Florida, South Carolina, Tennessee and Texas. Even if a local official is barred from mandating masks, a private employer could require masks based on the CDC's guidance.

CAPLAW’s prior analysis of the implications of CDC Guidance remains applicable to CAAs. For more information about employer vaccination programs, see our Do’s and Don’ts of COVID-19 Workplace Vaccinations.

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 90ET0482-01. 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.