The CDC Provides New Guidance for Fully Vaccinated Individuals
By: Johanna Fabrizio Parker, Corey Clay, Adam Primm, Partners at Benesch Friedlander Coplan & Aronoff LLP 

According to the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Association (OSHA), fully vaccinated employees no longer need to wear a mask or physically distance in any non-healthcare setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.  Prevention measures--wearing a mask that covers the nose and mouth, staying six feet apart, avoiding crowds and poorly ventilated indoor spaces, and sanitizing as often as possible--are still recommended for unvaccinated people. But what does this mean for the workplace?

The CDC's guidance does not have authority over state or local governing bodies that may impose other health rules, so different local and state rules still can apply. Many states, however, are following the CDC's lead. For example, Ohio issued a new public health order paralleling the CDC guidance, allowing fully vaccinated people to perform most activities without a facial covering and without social distancing. But this order is only in effect until June 2, after which it will be rescinded (and this trend is seen across states and localities). With the new CDC guidance, employers have a range of options--provided that no overriding state or local order imposes different rules:

• Option 1: Follow CDC guidance as a workplace rule and use the honor system. Employers could choose to follow the CDC guidance based on an honor systemthat is, tell employees that they no longer need masks or face coverings if they have been fully-vaccinated and leave it there and not require employees to provide proof of vaccination. As we have seen with various national stores that have implemented such a policy with their customers, wearing a mask becomes a matter of individual choice and responsibility. This can be an attractive option--both because of COVID fatigue and difficulty in finding employees--but it may simply defer enforcement issues. Where customers in a store are generally not going to know the vaccination status of fellow shoppers, employees who work together and socialize on a daily basis are more likely to know from everyday conversation who is and is not vaccinated. As such, employers may be forced to adjudicate and/or mediate interpersonal disputes when an employee reports that a colleague is not complying with workplace rules regarding facial coverings and social distancing. 

• Option 2: Implement CDC guidance as a workplace rule and require proof of vaccination for those employees who no longer wear facial coverings. Employers could create a policy that follows the CDC guidance but requires proof of vaccination from employees who wish to no longer wear a mask and comply with social distancing restrictions. If an employer chooses to follow this approach, it should take steps to ensure that the only information collected from employees is simple confirmation of the vaccine and no other information. The EEOC's position is that merely asking an employee to show proof of receipt of a COVID-19 vaccination is not a disability related inquiry. However, per the EEOC, "subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability" that can raise issues under the ADA and employers should also advise employees to avoid disclosing medical information in response to any such inquiry. (See December 16, 2020 EEOC Guidance, at FAQ K.3.) 

  How can an employer limit the information it retains from employees relating to the COVID-19 vaccination? An employer might create a "no-mask" list of employees who provide proof. Employees would be added to this list once management sees proof of the vaccine - a copy of the vaccine card itself would then not need to be maintained. (If an employer did retain copies of the cards, we would recommend treating them as medical records.) Of course, requiring proof  puts employers in a position to enforce the policy, thereby adding administrative burden. But as previously noted, the "honor system" approach raises its own issues. And, some employers may conclude that requiring confirmation of vaccination will make vaccinated employees more comfortable to return to the office.

• Option 3: Require all in-office employees to be vaccinated. Employers could require employees who work in the office to be vaccinated, provided that employees have the option to work effectively elsewhere. If the longer-term plan is to have everyone return, this approach may create obstacles in reaching that goal.

• Option 4: Require vaccinations for all employees. Employers could require vaccines generally and eliminate, or largely eliminate, the issue. Employers still need to address the potential disability or religious accommodation issues, as previously discussed in Can Employers Mandate the COVID-19 Vaccine?.  And, given the tight labor market, this option may not be practically viable.

• Option 5: Don't require any masks/social distancing if state or local rules are less restrictive than CDC guidance. Employers may consider following state rules that are less stringent than the CDC guidance. (For example, as earlier noted, on June 2 most Ohio COVID-19 health orders, except those relating to congregate living centers and nursing homes, will be rescinded.)  However, in the absence of further guidance/policy announcements from OSHA, there may be risk with such an approach given OSHA's current endorsement of the CDC approach.

• Option 6: Employers could also require masking and social distancing for all employees regardless of vaccinations.  But, and for Ohio especially after June 2, this approach also may have practical effects. On one hand, it could lead to unhappy employees and, lack of interest in any open positions if the masks remain mandatory for everyone. On the other hand, requiring masks for everyone--regardless of vaccination--avoids creating tiered hierarchy among employees that could similarly lead to unhappy employees, particularly when employees are largely permitted to remove masks if distanced from others while working.

Regardless of the choice, employers need to make sure there is no retaliation against employees. For example, in Option 2, employers should inform employees that they don't have to share their vaccination status, and there will be no retaliation regardless of their choice. Similarly, in Option 4, employers need to assure any employee requesting an accommodation that there will be no retaliation related to that request.

Finally, employers should watch for the less obvious potential discriminatory/retaliatory issues.  Supervisors and managers must be instructed that they cannot treat employees differently due to their vaccinated or unvaccinated status. Access to projects and guidance must be provided to all individuals -- whether they wear a mask or not.

If you have any questions, we encourage you to reach out to your Benesch contact or one of the attorneys below to discuss.

Johanna Fabrizio Parker at jparker@beneschlaw.com or 216.363.4585.

Corey Clay at cclay@beneschlaw.com or 216.363.4158.

Adam Primm at aprimm@beneschlaw.com or 216.363.4451.

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Please note that this information is current as of the date of this client bulletin (May 20, 2021), based on the available data. However, because COVID-19's status and updates related to the same are ongoing, we recommend real-time review of guidance distributed by CDC and local officials.

Charleston, SC (May 20, 2021): For nearly a decade when preliminary studies began, the new Hugh K. Leatherman Terminal serving the South Carolina Ports Authority operations in Charleston has remained one of the highest profile port projects on the U.S. East Coast. While Phase 1 of the terminal opened in March 2021, the full project continues to take shape thanks to ongoing work by the numerous contractors, suppliers, equipment manufacturers and engineers who have been involved with various facets of the complex facility.

Insight Group of North Charleston, SC is one of the geotechnical engineering firms that has contributed to this massive project. On Thursday, May 20, 2021, professionals from the firm shared the presentation 'Hugh K. Leatherman Terminal - BUILDINGS & CANOPIES - VALUE ENGINEERED FOUNDATIONS'  before an assembly of the PDCA of South Carolina Chapter membership during their quarterly dinner meeting. Presenting on behalf of Insight Group were Dr. Susheel Kolwalkar, PE and Ryan N. Keiper, PE.

In addition to the technical presentation, members gathered for a social/networking hour before a buffet dinner and brief membership meeting. During a raffle sponsored by the Pile Driving Contractors Association, Brad Glover and Bill Thomas each won a $50 PDCA BUCKS voucher, good for use on logo merchandise or educational resources available at The PDCA Store. The event took place at the Town & Country Inn on Savannah Highway in Charleston; event sponsors included; Koppers, Consolidated Pipe & Supply, Van-Smith Concrete, Nucor Skyline, ICE-International Construction Equipment, Junttan, Pile Master, SJ Hamill Construction, Terracon, Insight Group, Palmetto Pile Driving, Cape Romain Contractors and Parker Marine Contracting Corp.

See below for photos from the Second Quarter Dinner meeting of PDCA of SC, the group will gather again for the third quarter on August 12th, watch your inbox for more details as the event draws closer.

   

Dallas, TX (May 16, 2021): The International Foundations Congress and Equipment Expo, also known as IFCEE 2021, attracted thousands of attendees from around the world. While the auditoriums and conference rooms were filled with committee meetings, technical sessions and insightful presentations, the indoor and outdoor exhibit areas held more than 125 companies showing off their latest and greatest in deep foundations construction resources. Both areas maintained a constant flow of conference-goers who were looking to meet with a vendor, kick a tire on some new equipment or just get a free pen. One rainy day saw a near-capacity crowd in the indoor exhibit area while those outdoors made good use of their rented tents.

Take a moment and review the following photo montage from the exhibition side of IFCEE 2021. *Readers of PDCA e-newsletter 'A Pile of News' will get additional commentary and analysis on many of these photos; watch for that publication coming to the inboxes of subscribers June 1st.

APE - American Piledriving Equipment

Consolidated Pipe & Supply Company

 

Ian Vaz of Giken, Buck Darling of H.F. Darling recruit new member

Harold Baur of Boh Bros., Kirt Jackson of Cajun Industries

Dr. Frank Rausche at Pile Dynamics Inc./GRL Engineers booth

Pile Master

 

PVE Equipment USA

Trinity Products

 

PDCA's Kathy Harper with ECA bull riding team

Richard Goettle, Inc. and friends

 

Lodge Lumber

MKT Mamufacturing

 

DuroTerra

Bauer and Equipment Corporation of America

 

Allan Korte of Junttan

Mike Juneau of Premier Geotech & Testing

Joe Gelardi - American Equipment & Fabricating

 

Trae Hawkins of Favor Steel & Fabricating

Hammer & Steel, Inc.

 

ICE-International Construction Equipment, Group Deep Foundations

The Fields Companies

  

PILECO, Inc.

Jason Bales of Black River Solar with PDCA E.D. Frank Peters

 

CZM Foundation Equipment

Greg Major of DarkHorse Industries, LLC

 

Doug Keller of Richard Goette, Inc.

Diane Fischer of Pile Dynamics Inc.

Karl Higgins of ECS Limited

 

Greg Etue of Tadano-Mantis Takefumi Takuma,Gerry McShane  Mike Songer of The Fields Companies

PDCA thanks all of its members who attended IFCEE 2021, including these members who were also exhibitors: UBC Pile Drivers & Divers, Bauer Equipment America, Junttan, Hammer & Steel, Gilbert, CZM Foundation Equipment, ESC Steel, MKT, American Piledriving Equipment - APE, GRL Engineers, ECS Limited, LBFoster, PVE Equipment USA, GeoQuip, DarkHorse Industries, Pile Master, Keller, ICE-International Construction Equipment, DuroTerra, PILECO, Inc., Pile Dynamics, Inc., Lodge Lumber, American Equipment & Fabricating, JD Fields & Company, Liebherr, Nucor Skyline, Giken, Service Steel Warehouse, Jinnings Equipment, Favor Steel & Fabricating, Consolidated Pipe & Supply, BUILDBASEMATIC, ECA.

We did our best to photograph all of our attending members and their exhibits, when applicable, but know that some of them were not captured in these photos. The good news, there were cases when our member exhibitors were busy meeting with customers/clients in their booths and we opted to not interrupt what were clearly important meetings! Again, many thanks to all IFCEE participants.

Dallas, TX (May 13, 2021): While it may take some time for all equipment and displays featured by exhibitors at the triennial International Foundations Congress & Equipment Expo to arrive back at company properties, event attendees are returning to offices, shops and yards from what many in the deep foundations industry have deemed a successful event. Commonly known as IFCEE it was a LIVE, week-long technical conference and trade show at the Hyatt Regency in Dallas from May 10-14. More than 125 exhibitors spread across indoor and outdoor exhibition areas. Also, more than 50 technical presentations were delivered in live and virtual formats. IFCEE happens every three years; it is a collaboration of deep foundations construction association partners, the Pile Driving Contractors Association (PDCA), the Association of Drilled Shaft Contractors (ADSC), the Deep Foundations Institute (DFI) and the Geo-Institute of the American Society of Civil Engineers (ASCE). 

IFCEE 2021 included a variety of content and special events designed exclusively for pile drivers and PDCA members:

• LIVE meetings of ALL standing committees
• TWO short courses; 'Safe Working Platforms for Construction Equipment' and 'Deep Foundations QC/QA for Engineers, Contractors and Inspectors'
• E.A.L. Smith Award Lecture honoring Dr. Frank Rausche 
• PDCA members' reception, meeting 
• Invited Session; 'Vibrations' by subject matter expert, Dr. Cathy Aimone-Martin
• A PDCA booth in the Exhibit Hall which recognized all exhibiting members
  • Exhibiting PDCA members included:  UBC Pile Drivers & Divers, Bauer Equipment America, Junttan, Hammer & Steel, Gilbert, CZM Foundation Equipment, ESC Steel, MKT, American Piledriving Equipment - APE, GRL Engineers, ECS Limited, LBFoster, PVE Equipment USA, GeoQuip, DarkHorse Industries, Pile Master, Keller, ICE-International Construction Equipment, DuroTerra, PILECO, Inc., Pile Dynamics, Inc., Lodge Lumber, American Equipment & Fabricating, JD Fields & Company, Liebherr, Nucor Skyline, Giken, Service Steel Warehouse, Jinnings Equipment, Favor Steel & Fabricating, Consolidated Pipe & Supply, BUILDBASEMATIC, ECA.

Check out the following pictorial display of the various PDCA events that took place at IFCEE 2021, were you spotted by our camera? We will be sharing additional photos from the exciting show in Dallas, so check this blog page often.

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Dr. Cathy Aimone-Martin offered unique perspectives on 'Vibrations'. PDCA Technical Chair Dale Biggers recruited her after a 2019 engineering conference. Dr. Frank Rausche was invited to present the coveted E.A.L Smith Award Lecture; he discussed his history of involvement in deep foundations engineering. PDCA members gathered for an evening reception and membership meeting where they heard a short presentation on The State of PDCA. The first live PDCA Board meeting for new members Harold Baur and Bruce Langan; the Board of Directors met in-person to conduct association business. IFCEE had a virtual track for those unable to attend; engineer Mike Venezia helped develop the program and Susheel Kolwalkar was a presenter.  The PDCA booth gave publication resources, membership applications and a place to meet staff. It proudly featured a large sign highlighting exhibiting members.