On January 6, 2022, the Division of Occupational Safety and Health (Cal/OSHA) released updated FAQs clarifying that the isolation and quarantine recommendations from the California Department of Public Health (CDPH) (see post here) replace the exclusion periods and return-to-work criteria in the revised Emergency Temporary Standards (ETS) approved by the OSHA Board on December 16, 2021. A link to guidance regarding the revised ETS, which takes effect on January 14, is available here. Continue Reading Cal/OSHA Updates FAQs Regarding Isolation and Quarantine
As the COVID-19 landscape evolves and the Omicron variant pervades, state and local governments and health authorities have modified their recommendations, guidance, and regulations in an effort to manage the pandemic.
For example, on December 30, 2021, following the CDC’s December 27, 2021, changes to its quarantine and isolation recommendations, the California Department of Public Health (CDPH) issued “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public.” Among other things, the CDPH updated its guidelines to “align with the updated timeframes within the recent CDC update and recommend additional mitigation measures, including continued focus on testing and masking to best contain this more transmissible variant in our communities.” Likewise, on January 5, 2022, the CDPH issued “Guidance for the Use of Face Masks” wherein they are now “requiring masks be worn in all public settings, irrespective of vaccine status, until February 15, 2022.” The CDPH does note a few exemptions to the mask requirements.
Similarly, the San Francisco Department of Public Health has updated various guidelines. For example, on December 29, 2021, the department updated Health Order C19-07y, which, among other things, updated booster requirements for individuals working in “designated high-risk settings” and temporarily suspended certain exemptions to the indoor universal mask requirement until February 1, 2022. The department also updated its “Guidance for Isolation and Quarantine” on December 31, 2022, and January 5, 2022. The changes updated recommendations for the isolation and quarantine period and who needs to quarantine, defined “Up-to-Date on COVID-19 vaccination,” and updated its summary chart regarding isolation and quarantine.
Because the guidance and recommendations regarding COVID-19 are rapidly changing, employers should closely monitor federal, state, and local guidance to stay up to date.
The CDC recently updated its guidelines on, among other things, quarantine and isolation periods and recommendations regarding booster shots. Below is a high-level summary of some of these changes.
At the end of December 2021, the CDC updated its guidance regarding quarantine and isolation. A media statement from the CDC regarding its updates can be found here. Some of the biggest changes from the December recommendations involved the following:
- Reducing isolation for those with COVID-19 to five days followed by five days of wearing a mask when around others.
- Revising quarantine periods, including:
- For unvaccinated individuals, individuals who completed the primary series of Pfizer or Moderna over five months ago and are not boosted, or individuals who completed J&J over two months ago and are not boosted, quarantine five days followed by “strict mask use” for five days.
- If quarantine is “not feasible,” wear a “well-fitting mask at all times when around others for 10 days after exposure.”
- Individuals who have received booster shots do not need to quarantine but should wear a mask for 10 days after exposure.
In an updated guidance released on December 27, 2021, the Centers for Disease Control and Prevention (CDC) reduced the recommended isolation and quarantine period for the general population. The term “isolation” refers to the recommended behavior after a confirmed COVID-19 infection, while “quarantine” is the term that applies to the period following a person’s exposure to the virus or close contact with someone who has COVID-19. According to CDC Director Dr. Rochelle Walensky, the Omicron variant is spreading quickly, and the “CDC’s updated recommendations for isolation and quarantine balance what we know about the spread of the virus and the protection provided by vaccination and booster doses.” Continue Reading CDC Shortens the Recommended Isolation and Quarantine Period
On December 17, 2021, the Sixth Circuit granted the Biden Administration’s motion to Dissolve the Stay of the OSHA Vaccine ETS, which was issued by the Fifth Circuit on November 5, 2021. See link to full opinion. Judge Stranch (an Obama appointee) authored the opinion, which Judge Gibbons (a Bush appointee) joined. Judge Larsen (a Trump appointee) dissented. Unlike other appellate panels that have considered vaccine mandates, the Sixth Circuit specifically held that the Vaccine ETS was: (1) within OSHA’s authority; (2) not covered by the major questions doctrine (as the Fifth Circuit and the challengers contended); and (3) promulgated with more than sufficient justification based on the ongoing COVID-19 pandemic. In addition, the Sixth Circuit rejected petitioners’ commerce clause and non-delegation arguments. Notably, in lifting the stay, the Sixth Circuit concluded that Petitioners could not demonstrate the requisite likelihood of success on the merits or show irreparable injury, both of which are required for an injunction. This ruling could serve as a blueprint for local appellate courts to uphold vaccine mandates imposed on a state level. On November 12, 2021, OSHA announced that it would not attempt to enforce the ETS while the stay was in place. Now that the stay has been lifted, it remains to be seen how OSHA will address enforcement and compliance as the merits of the case proceed. In the meantime, Petitioners are expected to seek review en banc or to appeal directly to the United States Supreme Court. In the meantime, the state of Ohio trucking industry organizations, conservative advocacy groups, and other opponents of the rule petitioned the U.S. Supreme Court to block the OSHA.
OSHA has announced that it will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. Businesses and individuals with questions should contact experienced counsel for guidance on new policies and practices.
The California Occupational Safety and Health Standards Board (Board) readopted a revised version of its earlier Emergency Temporary Standards (Standard) for employers on preventing the spread of COVID-19 in the workplace on December 16, 2021. The revised Standard was readopted by a 6-1 vote in the form proposed by the California Division of Occupational Safety and Health (Division) and will take effect on January 14, 2022, for a period of 90 days. Continue Reading Cal/OSHA Revises COVID-19 Emergency Temporary Standards to Remove Distinctions for Vaccinated Workers
On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance to affirm that workers who contract COVID-19 can be protected from discrimination under the Americans with Disabilities Act (ADA). Depending on an individual employee’s specific circumstances, COVID-19 may constitute a protected physical or mental disability, may serve as the basis for an employer’s perception that an employee has a disability, and/or may contribute to a record of employee impairment. Continue Reading EEOC Updates Its COVID-19 Related Guidance
On December 13, 2021, the California Department of Health (CPDH) reinstituted a statewide mask mandate. From December 15, 2021 through at least January 15, 2022, all individuals will be required to wear masks in indoor public settings. The mandate applies regardless of vaccination status.
The mandate exempts children under two, persons with medical conditions or disabilities that prevent masking, hearing impaired persons, and persons for whom masking would create a risk related to their work (as defined by regulations and workplace safety guidelines). The mandate does not provide exemptions for certain businesses or industries.
Additionally, CPDH updated requirements for attending mega events, like concerts and sporting events. Prior to attending an event, attendees will now require either proof of vaccination, a negative antigen COVID-19 test within one day of the event, or a negative PCR test within two days of the event.
Businesses and individuals with questions should contact experienced counsel for guidance on new policies and practices.
On December 3, 2021, the U.S. Court of Appeals for the Sixth Circuit rejected, without analysis, the Biden administration’s request to expedite the briefing schedule on the issue of whether to dissolve an injunction from the U.S. Court of Appeals for the Fifth Circuit, which stayed enforcement of Occupational Safety and Health Administration’s vaccine Emergency Temporary Standard (ETS). The Fifth Circuit’s November 12 order is summarized here and the initial stay is summarized here.
Parties must file briefs opposing the Biden administration’s motion by December 7, and the government must respond by December 10. As a result, the stay will remain in place beyond the ETS December 6 deadline, which requires employers with 100 or more employees to develop a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery. The ETS is summarized here.
Notably, the Sixth Circuit still has not determined whether a panel of three judges or the full Sixth Circuit will hear the challenges to the ETS. Employers should consult experienced legal counsel for the most up-to-date advice on vaccine policies and the status of the ETS.
On November 30, 2021, the U.S. District Court for the Eastern District of Kentucky granted a preliminary injunction blocking the federal government from moving forward with the COVID-19 protocols for federal contractors issued by the Safer Federal Workforce Task Force (Task Force) and promulgated by President Biden in Executive Order 14042. Under the guidance issued by the Task Force, employees of covered federal contractors and those working “in connection with” federal contracts must be fully vaccinated by January 18, 2022.
This case, brought by Kentucky, Ohio, and Tennessee, is one of many challenges that have been brought against the vaccine mandate in federal courts around the country. However, this decision prohibits enforcement of the vaccine mandate only for covered federal contractors and subcontractors in covered contracts in Kentucky, Ohio, and Tennessee. Continue Reading Vaccine Mandate for Federal Contractors Blocked by Federal Court in Kentucky