By Rachel H. Khedouri, Esq.
As we all are getting ready to close the books on 2021, employers should be aware of new developments from the CDC, OSHA and the Supreme Court that impact how companies address the COVID-19 pandemic in the workplace now and into the new year:
1. The CDC has shortened its recommendations on isolation and quarantine
On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced new guidance for isolation (for those diagnosed with COVID-19) and quarantine (for those exposed to COVID-19) based on what is currently known about when and for how long individuals are contagious with COVID-19 and, in particular, the Omicron variant. As the current data suggests that the majority of SARS-CoV-2 transmission occurs in the first day or two prior to onset of symptoms and the two to three days after, the CDC has shortened its prior recommendation of isolation and quarantine periods of up to 14 days as follows:
- Everyone who tests positive for COVID-19, regardless of vaccination status, should isolate for five days and then can leave isolation if asymptomatic or symptoms are resolving. After isolation, individuals who have tested positive should wear a well-fitting mask around others for an additional five days. Anyone who has a fever should continue to stay home until the fever resolves.
- Those who are exposed to COVID-19 and are unvaccinated or received their vaccine more than two (J&J) or six (Moderna or Pfizer) months ago and have not received a booster, should quarantine for five days and then wear a mask around others for five additional days. Those who cannot quarantine should wear a mask around others for 10 days.
- Those who are exposed to COVID-19 and were vaccinated within the last two (J&J) or six (Moderna or Pfizer) months or have received a booster do not need to quarantine. These individuals should still wear a mask around others for 10 days.
- For all those exposed, regardless of vaccination status, the CDC also recommends testing on day five. If symptoms develop following exposure, individuals should immediately quarantine and test.
Employers should keep in mind that state or local guidance may differ from the CDC’s. For example, although New Jersey generally follows CDC recommendations, the NJ COVID-19 Information Hub still provides for isolation periods of at least 10 days and quarantine periods for unvaccinated individuals from seven to 14 days.
2. OSHA has updated compliance dates for its federal vaccine mandate for private employers
As we alerted you on December 20, 2021 [CLICK HERE], the Sixth Circuit Court of Appeals lifted the stay on OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), and OSHA is currently proceeding with implementation of the ETS. OSHA at that time had announced that it would not pursue noncompliance with the requirements of the ETS before January 10, 2022 and would not issue citations for noncompliance with its testing requirements before February 9, 2022. OSHA now has updated its FAQs [available HERE] to clarify that employees have until February 9, 2022 to complete the primary vaccination series (e.g., one dose of the J&J vaccine or two doses of the Moderna or Pfizer vaccines) to avoid the weekly testing requirement. The employee is not required to have completed the two-week waiting period following vaccination to be considered “fully vaccinated.” Employers are still expected on or before January 10, 2022 to have:
- developed a written mandatory vaccination or vaccine-or-test policy;
- determined and obtained proof of the vaccination status of all employees and be keeping records of same;
- provided certain required information to employees, including information about the ETS and the company’s policies to implement the ETS, the CDC document “Key Things to Know about COVID-19 Vaccines,” information on retaliation and discrimination, and information about penal laws for knowingly supplying false statements or documentation;
- allowed for time off for employees to be vaccinated or recovered from vaccine side effects; and
- begun requiring employees who are not fully vaccinated to wear face coverings indoors (or in a vehicle with another person for work purposes).
Employers should also be removing employees diagnosed with COVID-19 from the workplace, regardless of vaccination status.
3. The full Supreme Court will hear argument on the OSHA ETS
As we previously reported [CLICK HERE for our December 20, 2021 eAlert], emergency motions to enjoin the OSHA ETS had been filed before Supreme Court Justice Kavanaugh, who then referred those motions to the full Supreme Court. The matter has been set for expedited oral arguments on January 7, 2022. The Court also will hear argument at that time on the Centers for Medicare and Medicaid Services interim final rule. It is unclear how long the Supreme Court will take to consider these issues – and whether, when it rules, it will let OSHA continue with its enforcement efforts pending a ruling by the Sixth Circuit on the challenges to the ETS, reinstate a stay of the ETS pending the Sixth Circuit’s ruling, or, perhaps, take the unusual move of granting the requested alternative relief to weigh in on the merits of the ETS overall. Given this uncertainty, employers are encouraged to continue preparing to implement policies and procedures in compliance with the ETS requirements in accordance with OSHA’s enforcement schedule (per above).
We wish all of our clients and friends a very healthy and happy New Year!
If you have questions relating to this eAlert or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team or the NFC Attorney with whom you typically work, or call us at 973.665.9100.