The CDC has recently made major changes to its guidance for mask-wearing. On May 13, 2021, the CDC issued guidance revising the risk levels and proposed mask requirements for various activities, for fully-vaccinated persons. Most social activities and group activities that had been restricted in light of the COVID-19 pandemic have been (for vaccinated persons at least) cleared back to the “green zone”. This represents a judgment and scientific realization that the COVID-19 vaccines are quite good and quite effective. Fully vaccinated persons are cleared to participate in many (formerly) “high risk” activities without a mask, including being indoors in a bar, exercising and working out in an indoors environment,  visiting a movie theater, and more. While you are of course free (as always) to wear a mask to any of these activities you so choose, and while businesses are free (as always) to require masks on premises, this represents a significant step forward in guidance provided by the CDC, and a significant step toward “re-normalization” of our everyday social lives. A few other things to note, however, about this development:
  • these shifts in the guidelines are not necessarily permanent – developments in the nature of the pandemic, including more transmissible variants, could cause further changes in guidance; much has been written about this “variant risk” and this is a fertile topic for research, as many of the variants are less susceptible to the vaccine (whether slightly less or significantly less)
  • the CDC does not wield direct governing authority over the states – while many people, authority figures, governors, legislators, etc. (rightfully) do listen and pay attention to what the CDC has to say, this guidance from the CDC is ultimately “just” guidance and does not have a legally binding effect
  • we still do not have a wonderful understanding of exactly how long the protection conferred by the vaccine lasts, and while it is likely at least a few months, we don’t yet have a good sense for the true length of the protection conferred – if you consider a Flu shot, for example, the protection lasts between 1-2 years, and degrades over time, but on the other hand a Yellow Fever or MMR shot is good for life once the two-dose series is completed – therefore, just because you’re in the “green vaccinated” group NOW, you’re not necessarily in that group PERMANENTLY
  • while this chart addresses primarily masking, another thing that we do know about COVID-19 is that it’s primarily transmitted indoors, so whether you’re vaccinated or unvaccinated, your risk profile will be lower with outdoor activites than with indoor activities
  • the role of asymptomatic spreaders and the health effects of the virus on “long haulers” are still being studied – you should stay tuned to the news and what the authorities have to say because we’re learning more about this disease every day.
Now, specifically as to the legal consequences of this development: Probably not much. As I mentioned above, the CDC doesn’t have a whole lot of direct legal authority. More likely this will have an indirect effect on the legal consequences that exist for businesses, as governors, city councils, legislators, etc. (who have all been “hiding behind” the CDC to justify mask mandates and social distancing guidelines, saying “look we need to trust what the experts and scientists are telling us”) are now confronted with that expert guidance upon which they’ve been relying becoming drastically different. This could also, ironically, strengthen the case for some sort of vaccine passport – which implicates all kinds of crazy issues like potential HIPAA violations etc. I plan to cover some of the implications of this in a future post, but for now, let’s say that there is an extremely interesting cluster of issues here. If you would like to hear about these developments in video form, please check out the below YouTube post.
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