Dear Clients and Friends:
Welcome to our latest Friday Five Newsletter, where we share the Top Five Things You Need to Know This Week to Protect Your Work Community™ (in particular with respect to COVID-19) and help it thrive. Below are recent developments in the law, or questions that we find ourselves answering a lot. 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 Supreme Court Has Spoken: OSHA’s Vaccine and Testing ETS for Employers with 100+ Employees Is on Hold (Again) … For Now …
As a reminder: In November 2021, OSHA implemented its Vaccine and Testing Emergency Temporary Standard (“OSHA ETS”), requiring that employers with 100+ employees implement a mandatory COVID-19 vaccination policy or an optional vaccination-or-testing policy. Since then, there have been numerous challenges to the rule, and the implementation was in effect pending the outcome of an appeal to the U.S. Supreme Court. Yesterday the Supreme Court published its opinion on whether the OSHA ETS should be stayed (put on hold) or allowed to remain in effect pending the ultimate outcome of the Sixth Circuit’s decision on the merits of the issue. The answer: THE OSHA ETS IS ON HOLD.
For how long will the OSHA ETS be stayed/on hold? The OSHA ETS is stayed until the Sixth Circuit Court of Appeal issues a decision on the merits of the underlying case, and then (depending on the outcome) on any resulting petitions to the U.S. Supreme Court for review. This means even if the Sixth Circuit denies the challenges to the OSHA ETS, it will remain on hold until the outcome of any further challenges to that ruling, which could be months from now.
What does this mean for employers? You can take a breath and sit tight for the moment. Many companies have been scrambling over the holidays to roll out policies and gather employee vaccination proof in order to come into compliance with the OSHA ETS since OSHA announced its revised and quickly-approaching enforcement deadlines. This exercise at the least does not need to be a fire drill, and ultimately may not be necessary. While we do not know the ultimate fate of the OSHA ETS, there will be a period of reprieve for employers to regroup and either slow down or pause their efforts to comply with this rule.
In the absence of a crystal ball . . . While we cannot predict the ultimate outcome in the Sixth Circuit or the Supreme Court, the U.S. Supreme Court’s opinion relies on its determination that the challengers to the OSHA ETS likely will prevail on their claim that the government exceeded its authority to impose this mandate. We leave the predicting to you from there.
(2) In Contrast, the U.S. Supreme Court Upheld the CMS Vaccine Mandate for Healthcare Workers.
Yesterday the U.S. Supreme Court allowed the Centers for Medicare and Medicaid’s (“CMS”) vaccine mandate for healthcare workers to go into effect. Recall, this mandate covers all Medicare- or Medicaid-certified providers, and requires that all employees of those providers be vaccinated, absent certain narrow exceptions and unless a reasonable accommodation has been granted based on medical or disability reasons or based on sincerely-held religious beliefs, practices, or observances. Employers are not required to mandate boosters at this time, but boosters must be tracked by employers.
Will there be any further challenges to the mandate? The CMS mandate remains in effect nationwide until the Eighth Circuit and/or Fifth Circuit Courts of Appeal issues decisions on the merits of the rule, and then, similar to the OSHA ETS and depending on the outcome at the appellate level, on any resulting petitions to the U.S. Supreme Court for review. This means even if the Eighth and/or Fifth Circuit Courts of Appeal grants the challenges to and blocks the CMS mandate, it will remain in effect until the outcome of any further challenges to that ruling, which could be months from now. The states that will be impacted by the Fifth Circuit’s ultimate ruling include California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. All other states will be impacted by the Eighth Circuit’s ruling.
What should covered employers do next? Companies covered under this mandate should prepare and disseminate written policies, develop a program for tracking and verifying vaccination proof, and a establish a process for requesting and reviewing requests for accommodations. Please note that many California healthcare employers are already required to mandate COVID-19 vaccines, as well as boosters, per a California Department of Public Health (“CDPH”) order. Compliance with the California order will satisfy the CMS mandate requirements. Let us know if you could use some help coming into compliance.
(3) Updates to Isolation, Quarantine, and Return to Work Periods.
Are there updates in Calilfornia? Yes. As recently as January 8, 2022, California updated its guidelines for individuals to isolate, quarantine and return to work, which have been adopted by Cal/OSHA for purposes of compliance with the Cal/OSHA ETS. Here are the latest rules. And yes, this is exhausting, and we feel your pain:
For Non-Healthcare Workers:
- Isolation guidelines for individuals who test positive for COVID-19: The rules allow for a shortened 5-day isolation period if an individual tests negative on day 5 following symptoms (or following the first positive test if asymptomatic). Employees are required to wear a well-fitted mask for a total of 10 days, even if they return to work sooner with a negative test. If no testing occurs, the prior 10-day isolation periods apply.
- Quarantine guidelines for individuals with close contact exposure: Asymptomatic fully vaccinated and boosted employees (or fully vaccinated employees who are not yet eligible for a booster dose) do not need to quarantine following a close contact exposure so long as they are asymptomatic, but are required to get tested on day 5 following exposure. Asymptomatic fully vaccinated and unboosted employees (if eligible for the booster) do not need to quarantine so long as they are tested 3-5 days after exposure. If no testing occurs, the prior 10-day quarantine periods apply. Per Cal/OSHA regulations, exposed employees, regardless of vaccination status, are required to wear a well-fitted mask and physically distance at all times while indoors for 14 days following the date of last close contact.
- Testing requirements: An antigen test, nucleic acid amplification test (NAAT) (note that the commonly used PCR test is in the NAAT category) or LAMP test are acceptable, however, it is recommended that persons use an antigen test for ending isolation. Exposed persons who were infected with COVID-19 within 90 days prior to their current exposure should also use an antigen test. Use of Over-the-Counter tests also are acceptable to end isolation or quarantine. As a reminder, Cal/OSHA prohibits tests that are both self-administered and self-read by the employee, so any over-the-counter tests must be proctored by a telehealth provider or by the employer.
- Masking recommendations: CDPH recommends (but does not require) that individuals wear surgical masks or respirators (e.g., an N95 mask).
For California Healthcare Workers; Effective through February 1, 2022: Due to critical staffing shortages, employees who have tested positive for COVID-19 and are asymptomatic may return to work immediately without isolation and without testing, and employees who have been exposed and are asymptomatic may return to work immediately without quarantine and without testing. These employees must wear an N95 respirator at all times, and preferably should be assigned to work with COVID-19 positive patients. However, this may not always be possible in settings such as the emergency department in which you may not know which patients are COVID-19 positive or in areas where you may be experiencing extreme staffing shortages. Facilities implementing this change must have made every attempt to bring in additional registry or contract staff and must have considered modifications to non-essential procedures.
For California Healthcare Workers; Effective February 2, 2022 (or currently, if no critical staffing shortage):
- Exclusion periods for employees who have close contact exposure and do not develop symptoms (Routine criteria - When there is no critical staffing shortage).
- Vaccinated and boosted employees or fully vaccinated but not yet booster-eligible: Employees are not required to quarantine and may continue to work. Employees are required to get tested immediately upon identification of a close contact (test must be negative) and again 5-7 days after exposure (test must be negative).
- Unvaccinated or vaccinated and booster-eligible but have not received the booster dose, even if employee had tested positive in the past 90 days: Employees must quarantine for 7 days. Employees are required to get tested immediately upon identification of a close contact (test must be negative) and again within 48 hours of return to work (test must be negative).
- Exclusion periods for employees who have close contact exposure and do not develop symptoms when there is a critical staffing shortage: Employees are not required to quarantine and may continue to work. Employees are required to get tested immediately upon identification of a close contact and again 5-7 days after exposure. This applies regardless of vaccination status or prior infection.
- Employees excluded because they are a COVID-19 case (i.e., they have tested positive for or were diagnosed with COVID-19, or have an order to isolate from public health authorities) when there is no critical staffing shortage:
- With testing:
- Vaccinated and boosted or fully vaccinated but not yet booster-eligible employees: Employees who are asymptomatic or mildly symptomatic must isolate and may return after 5 days, provided they receive a negative test taken within 24 hours or on the date of return and symptoms are improving (if applicable).
- Unvaccinated or vaccinated and booster-eligible but have not received the booster dose, even if employee had tested positive in the past 90 days: Employees who are asymptomatic or mildly symptomatic must isolate and may return after 7 days, provided they receive a negative test taken within 24 hours or on the date of return and symptoms are improving (if applicable).
- Without testing (regardless of vaccination status): Employees may return after 10 days provided symptoms are improving (if applicable).
- Employees excluded because they are a COVID-19 case when there is a critical staffing shortage:
- Vaccinated and boosted or fully vaccinated but not yet booster-eligible employees: Employees are not required to isolate or may return in less than 5 days. Employees whose most recent test is positive must only provide direct care to residents who are COVID-19 positive.
- Unvaccinated or vaccinated and booster-eligible but have not received the booster dose, even if employee had tested positive in the past 90 days: Employees must isolate and may return after 5 days. Employees must test upon return. Employees most recent test is positive must only provide direct care to residents who are COVID-19 positive.
- Respirator and physical distancing requirements: Employees whose most recent test is positive and are working before meeting routine return-to-work criteria must maintain separation from other employees as much as possible (for example, use a separate breakroom and restroom) and wear an N95 respirator at all times while in the covered facility.
Similarly, exposed unvaccinated and vaccinated employees who are booster-eligible but have not yet received their booster dose who are working during their quarantine period must also wear an N95 respirator for source control at all times while in the facility until they meet routine return-to-work criteria. The facility must provide N95 respirators to any employees who wish to wear one when not otherwise required for the care of residents with suspected or confirmed COVID-19.
- Employees who have severe to critical illness due to COVID-19 and are not moderately to severely immunocompromised must isolate and may return to work as follows: Employees must isolate and may return after 20 days have passed since symptoms first appeared and at least 24 hours have passed since the last fever without medications and symptoms have improved. Employees may return sooner than 20 days if no fever and symptoms have improved and results are negative from at least 2 consecutive tests taken within 24 hours of each other.
- Employees who are moderately to severely immunocompromised: Employees must isolate and may return once results are negative from at least 2 consecutive tests taken within 24 hours of each other. It is recommended that an infectious disease specialist or other expert and an occupational health specialist be consulted regarding the return-to-work timeline.
What Does the CDC Say About Healthcare Workers? The CDC has updated its guidance for the public in general as well as for healthcare workers, which are similar but differ in some respects from California’s orders. They can be found here.
Are There Local Isolation and Quarantine Orders?
Cal/OSHA requires that employees return to work according to the CDPH criteria noted above, unless a local isolation or quarantine order requires a longer period before returning to work. Some local isolation and quarantine orders have not yet updated their orders to align with the CDPH and, for example, require that employees who are fully vaccinated but unboosted (if booster-eligible) quarantine for 5 days following exposure if asymptomatic (e.g., San Diego and Orange Counties). Employers should monitor their local orders for updates and follow all such orders that require stricter isolation and quarantine periods.
(4) Los Angeles County Now Requires Medical Grade Masks or Higher Protection.
Los Angeles County updated its health order to require that whenever masking is required, individuals must wear a medical grade mask (surgical mask or respirator, ideally an N95 or KN95 mask). Cloth masks now are prohibited. Employers in Los Angeles County should ensure the masks they provide employees and visitors comply with these new requirements and update policies accordingly.
(5) Reminder: Cal/OSHA’s Revised ETS Goes Into Effect Today (January 14, 2022). What does this mean for you? If you haven’t updated your prevention programs, training materials, exclusion protocols, and the like to bring yourself into compliance with the revised ETS, you are subject to potential penalties. Reach out if you would like some help coming into compliance.
We Are Here For You
We hope this information is helpful as you navigate the recent developments and constantly changing laws. Please stay tuned, we will continue keeping you updated. And please, reach out if you have questions or just want to talk!