Dear Clients and Friends:
We suppose it was optimistic to wish you a Happy New Year with our last Friday Five, but we are nothing if not hopeful. What we can say is: this is our last Friday Five Newsletter for 2021. Here you will find the top Five Things You Need to Know This Week to Protect Your Work Community™ with respect to COVID-19. As always, please reach out with any questions, we are here for you. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) The CDC Has Shortened Isolation and Quarantine Periods . . . But Hold Off Celebrating if You Have 100+ Employees or Are in California.
The Centers for Disease Control (“CDC”) has shortened the recommended time for isolation for members of the public who test positive for COVID-19. Specifically, people with COVID-19 should isolate for five (5) days, and if they are asymptomatic or their symptoms are resolving (meaning, per the CDC, they are without fever for 24 hours), then follow that by five (5) days of wearing a mask when around others.
Additionally, the CDC has updated the recommended quarantine period for anyone in the general public who is exposed to COVID-19. Specifically, for people who are unvaccinated or are more than six months out from their second mRNA dose (or more than 2 months after the J&J vaccine) and not yet boosted, the CDC now recommends quarantine for five (5) days following close contact, followed by strict mask use for an additional five (5) days. If a 5-day quarantine is not feasible, an exposed person should wear a well-fitting mask at all times when around others for 10 days after close contact. Individuals who have received their booster shot or are not yet eligible for a booster do not need to quarantine following an exposure, but should wear a mask for 10 days after the exposure.
How does this apply to the workplace? The OSHA ETS states that employees may return to work after one of several criteria is met, one of which is meeting the CDC’s (now updated) Isolation Guidelines. However, the statutory language of the OSHA ETS also states that the CDC Isolation Guidelines are incorporated by reference, and the incorporation statute specifically states that the version that was “updated February 18, 2021” is incorporated. Although it seems a small point, the Code of Federal Regulations appears to limit materials that are incorporated by reference to the version that was in place at the time the incorporation statute was approved and “further amendments or revisions … are not included.”
Short answer: stay tuned for more on this point.
Equally important: California’s ETS (including California Department of Public Health (CDPH) isolation and quarantine orders) has not been modified to include this decreased isolation and quarantine requirement, although there have been rumblings that the CDPH plans to modify the requirement soon. Until the ETS is modified, the prior quarantine and isolation rules apply to California employers. Need a refresher on those rules? Let us know!
(2) The CDC Also Released Updated and Shortened Isolation and Quarantine Periods for Healthcare Employees, But Again – Slow Down Your Joy Train California Employers.
Yes, the CDC has shortened isolation and quarantine periods for healthcare workers https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-risk-assesment-hcp.html, but in California that only applies if there is a staffing shortage. Otherwise, according to the California Department of Public Health (“CDPH”), the old periods apply.
- When there is no staffing shortage, the isolation and quarantine periods have not changed (i.e., the CDC’s guidelines do not apply). Need a refresher on the rules?
- When there is a staffing shortage, the CDC’s updated guidelines apply, and the shortened periods may be implemented. Boosters are required to be received and tracked for the shortened periods to apply.
- If there is a staffing shortage (non-crisis level):
Asymptomatic positive employees: Employees who (1) have COVID-19, (2) are asymptomatic, and (3) are not moderately to severely immunocompromised, may return after five or more days since the date of the first positive test.
Symptomatic positive employees: Employees who (1) have COVID-19, (2) have mild to moderate symptoms, (3) are willing to work, and (4) are not moderately to severely immunocompromised, may return after five or more days since symptoms first appeared, and at least 24 hours have passed since the last fever without fever-reducing medications, and symptoms have improved.
Exposed and vaccinated + boosted employees: No work restrictions and no need to exclude from work.
Exposed and unvaccinated or vaccinated but not boosted (even if within 90 days of prior infection): No work restrictions and no need to exclude from work if negative tests on days 1, 2, 3, 5, 6, and 7 (day of symptom onset if symptomatic or date of test taken if no symptoms = day zero).
- In the event of crisis-level staffing shortages: No work restrictions, but there are prioritization guidelines, and employees should test if possible.
(3) OSHA Healthcare ETS Has Expired, and Will Not Be Renewed. Again, Don’t Get Too Excited.
The federal OSHA Healthcare ETS expired on December 21, 2021, and OSHA stated this week that it will not renew this Healthcare ETS (except for the recordkeeping requirements which remain intact). Instead, OSHA will be implementing a permanent ETS in April 2022. Note, though, that OSHA also stated that the simplest way for healthcare employers to comply with the general duty OSHA requirements is to continue to comply with the Healthcare ETS.
What this means? You probably should continue to comply with the old Healthcare ETS. And more importantly, the OSHA ETS for 100+ employers now applies to healthcare employers who previously were exempt.
But what about the pending challenges to the federal mandates, you ask? The U.S. Supreme Court will hear oral arguments on January 7, 2022, in both the OSHA ETS and the CMS mandate cases. In an unprecedented move, the Supreme Court has set for oral argument on Jan. 7th both (1) the emergency applications to stay the Missouri and Louisiana district court injunctions judicially enjoining the CMS mandate in 25 states; and (2) the emergency applications to re-stay the OSHA mandate.
Traditionally, the Supreme Court acts on emergency applications such as these without oral argument. And occasionally, the Supreme Court then converts an emergency application to a full hearing on the merits. But it is unheard of for the full Court to hear oral argument directly on an emergency application like this. The Court’s order shows the legal and practical importance of the federal government’s vaccine mandates and whether they should be stayed pending appellate review.
(4) What Is the Latest Guidance for States with OSHA Plans?
In states with state-OSHA plans (“State Plan”) (this includes Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming), federal OSHA has given these states until January 7, 2022, to announce their intentions with respect to the adoption of the OSHA ETS and to move forward with adoption by January 24, 2022. State Plans must either adopt the federal ETS or alternative regulations, or demonstrate that their standards that are at least as effective as the ETS, by January 24.
So you know, states (and not federal OSHA) enforce their own State Plans. As a result, employers in these states have more time to come into compliance. We have not yet heard from Cal/OSHA what it intends to do, although we suspect it will adopt a separate ETS. Federal OSHA enforces OSHA regulations in states without State Plans, and these states will be required to comply with the OSHA ETS by January 10th (and February 9th for testing).
(5) Governor Newsom Issued an Executive Order Permitting a Third Readoption of the Cal/OSHA ETS.
Previously, the ETS was set to expire April 14, 2022, at which point a permanent standard would become effective. The Executive Order means that there will likely be a third readoption of the ETS (so long as it does not extend beyond December 31, 2022), and a permanent standard will be tabled until the end of 2022 (for 2023).
As We Draw the Curtain on 2021
We can only hope that you enjoyed reading the Friday Fives in 2021 as much as we have enjoyed writing them. We collectively hope for a fresh new year filled with only good news, health and prosperity for all of you and your loved ones. And please, reach out if you have questions or just want to talk. Or scream.
Happy New Year!