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August 16, 2021

FROM: Steven Davi

Steven N. Davi

Executive Director and General Counsel

The US Centers for Disease Control (CDC) guidance

As discussed on Thursday, July 29, during our most recent joint meeting of the Allied membership and board of directors, the US Centers for Disease Control (CDC), as part of the nation’s escalating fight against the delta variant of the coronavirus, recommended on Tuesday, July 27, that vaccinated Americans wear masks indoors in certain circumstances. Specifically, the agency advised that vaccinated people who live in high-transmission places, including all five of New York City’s boroughs, wear masks in indoor public spaces. The CDC also recommended that vaccinated people with vulnerable household members, including young children and those who are immunocompromised, wear masks indoors in public spaces.

The guidance, announced during a 3 p.m. news briefing, substantially altered the CDC’s May 13 recommendation that vaccinated people did not need to wear masks indoors or outside because of the protection afforded by the coronavirus vaccines.

This policy change could have significant ramifications for employers as OSHA’s Covid-19 guidance has generally dovetailed with the latest CDC recommendations. As of now, though, OSHA has not yet confirmed whether or when it will update its guidance to align with that of the CDC, which could leave employers in another extended state of limbo.

In any event, "[e]mployers probably need to consider th[e CDC’s] new guidance as modifying what OSHA previously issued, even before OSHA has a chance to revise its own guidance," according to Martha Boyd, a shareholder at Baker Donelson Bearman Caldwell & Berkowitz PC. "The bottom line here is this: The CDC says people should wear masks indoors, vaccinated or not. OSHA can easily find that an employer breached its obligation to keep employees safe under the general duty clause by failing to mandate universal masking in the workplace at this point. I would say that employers whose employees work close together or work with the public, such as manufacturing facilities, groceries/retail, and hospitality, probably ought to consider requiring masks for everyone again.”

On cue, on Saturday, July 31, the City of New York issued Executive Order No. 74 effective August 2, 2021. This order essentially requires all employers performing work pursuant to a contract awarded by the City, and/or any subcontract underlying such a contract, where such work is to be performed within the City of New York, and where employees can be expected to physically interact with City employees or members of the public in the course of performing such work, to ensure covered employees (i) wear a face covering at all times the covered employee can be expected to physically interact with City employees and members of the public in the course of performing work under the contract, or (ii) provide proof of their full vaccination status. City agencies are tasked with requesting this information from their contractors, and the contractors are required to respond to such inquiries.

Finally, on Tuesday morning, August 3, Mayor Bill de Blasio announced that New York City will become the first major city in the United States to mandate Covid-19 vaccination for workers and patrons of indoor dining, indoor fitness, and indoor entertainment venues and performances.

In a press conference, Mayor de Blasio stated that the mandate – termed the “Key to NYC Pass” – will launch on August 16, 2021, around which time further guidance on the requirements will be issued; after a transition period, enforcement will begin on September 13, when schools are expected to reopen and more workers could return to offices in Manhattan. Individuals will be able to show their vaccination card or utilize either the New York State Excelsior Pass or a new vaccine pass to be launched by the City as proof of vaccination. This is the latest in a series of aggressive moves by the mayor to get more New Yorkers vaccinated to curtail a third wave of coronavirus cases amid concern about the spread of the delta variant.

We will continue to monitor all relevant developments in this regard and provide updates as they become available.

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