On February 4, the tri-agencies (DOL, HHS and Treasury) issued new FAQs on the requirement for group health plans and issuers to cover over-the-counter (OTC) COVID-19 tests without cost-sharing, prior authorization, or other medical management requirements. We discussed the tri-agencies’ initial FAQs in our prior blog post.

The coverage requirement is still in place, but these new FAQs provide clarifications in response to the tri-agencies’ receipt of stakeholder questions—primarily about the “safe harbor” permitting the limit of reimbursements to $12 per test (or actual cost, if less) if the test is purchased outside a direct coverage program.

Click here to read the full blog post on Employee Benefits.

On February 9, 2022, California Governor Newsom signed SB 114 into law, reinstituting COVID-19 sick leave for 2022 (“2022 COVID-19 Sick Leave”). 2022 COVID-19 Sick Leave applies to employers with more than 25 employees and becomes effective February 19, 2022. Notably, the 2022 COVID-19 Sick Leave is retroactive to January 1, 2022. It will expire on September 30, 2022. Continue Reading California COVID-19 Sick Leave: A New Bill Extending COVID-19 Sick Leave for 2022

This week, the Department of Labor, Health and Human Services and the Treasury issued a new set of Frequently Asked Questions (FAQs) confirming that group health plans and issuers must provide 100% coverage of over-the-counter (OTC) COVID-19 diagnostic tests beginning January 15, 2022.

The FAQs are further interpretation of the coverage mandate required by the Families First Coronavirus Response Act (FFCRA), as amended by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Under this new guidance, 100% of the cost for COVID-19 tests purchased by an individual for diagnostic purposes on or after January 15, 2022, must be covered without cost-sharing or medical management requirements—even if the test was purchased OTC without a provider prescription or clinical assessment. This requirement continues for the duration of the national public health emergency. Continue Reading New FAQs Require Group Health Plans and Issuers to Cover OTC COVID-19 Tests

Near the end of 2021, the Occupational Health and Safety Administration (OSHA) issued the Emergency Temporary Standard (the ETS), which required employers with 100 or more employees to put in place a mandatory vaccination policy or require weekly COVID-19 testing and mask wearing by unvaccinated or partially vaccinated employees. On November 5, 2021, the United States Court of Appeals for the Fifth Circuit stayed enforcement and application of the vaccine mandate; this stay was dissolved by the Sixth Circuit Court of Appeals on December 17, 2021. See the discussion of these rulings here and here. Thereafter, the United States Supreme Court agreed to review the issue.

Continue Reading The Supreme Court Stays OSHA Rule Requiring Vaccination or Testing for Most Private Employers

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.

Continue Reading CDC Revises Guidance on Quarantine, Isolation, and Booster Shots

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