The CDC’s shorter isolation and quarantine requirements will allow employers to get many COVID-19 positive employees and exposed, unvaccinated employees back to work 5 days sooner.
On December 28, 2021, the CDC shortened the recommended isolation period for all persons with COVID-19. Under the revised guidance, individuals only need to isolate for 5 days instead of 10 days following the onset of symptoms or a positive test if asymptomatic or symptoms are resolving after those initial 5 days. The CDC also recommends that individuals continue to wear a face mask around others for at least 5 days following this initial 5-day isolation period. These recommendations previously only applied to essential workers.
The CDC also updated its quarantine recommendations for those exposed to COVID-19. Previously, the CDC advised that individuals who were fully vaccinated did not need to quarantine after contact with someone who had COVID-19, unless experiencing symptoms. Now, for individuals 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) but not yet boosted, the CDC recommends quarantining, if feasible, for 5 days followed by strict mask use for an additional 5 days. If a 5-day quarantine is infeasible, the CDC explains it is “imperative” that the exposed individual wear a well-fitting mask at all times when around others for 10 days after exposure. Testing on day 5 is recommended.
Individuals who have received their booster shot, or are less than 6 months out from their primary Pfizer or Moderna vaccine (or less than 2 months out from the J&J vaccine) however, do not need to quarantine following an exposure, but should wear a mask for 10 days after the exposure, and get tested on day 5 if possible.
These changes come during a particularly fraught stage of the pandemic, with the Omicron variant spreading, significant numbers of Americans testing positive, a growing risk of labor shortages, renewed disruption to the economy, and widespread exhaustion from further disruption to daily life. As CDC Director Rochelle Walensky reassured when the updated guidance was announced: “These updates ensure people can safely continue their daily lives.”
For employers in most jurisdictions, the updated guidance likely means that policies requiring employees to isolate/quarantine for 10 or more days can be revised to align with the CDC’s updated recommendations. Revising these policies will allow many employers to get employees back to work sooner. However employers should confirm that the relevant state and local authorities have adopted CDC’s recommendations. The CDC admonishes that its recommendations do not supersede state, local, tribal, or territorial laws, rules, and regulations.
Given the transmissibility of the Omicron variant, employers should remain vigilant in keeping these and other employees at least six feet apart, particularly in break rooms and other areas where employees may be required to remove their mask temporarily (to eat or drink, for example).
Employers could also update their policies if they previously did not require fully vaccinated employees to quarantine following exposure to COVID-19. Employers must also comply with stricter state and local rules. Before making any changes, employers should check to ensure that there are no state or local rules requiring different isolation periods and masking protocols, although we anticipate that several of these jurisdictions will begin to align with the updated guidance.
For more information on these changes and all things COVID-19, please contact the authors or your Seyfarth attorney.
Seyfarth Synopsis: In light of rising cases of COVID-19, the CDC has recently reversed its prior facemask guidance, and has now required that both vaccinated and unvaccinated individuals wear masks indoors in public spaces in areas where there is significant transmission of COVID-19. Certain local jurisdictions have adopted similar rules that renew requirements for facemasks. In a significant move, OSHA has announced on its website that it has reviewed the latest guidance, science and data on COVID-19, and is not otherwise amending its COVID-19 Emergency Temporary Standard for Healthcare at this time.
OSHA’s June 2021 COVID-19 Emergency Temporary Standard for Healthcare employers provides a clear exception to general mask rules for (1) vaccinated employees (2) in well-defined areas, (3) where there is no reasonable expectation that any person with suspected or confirmed COVID–19 will be present. Accordingly, compliant with the ETS, health care employers are lawfully permitting employees to unmask in office settings where all employees are vaccinated and no COVID+ patients will be present. While the ETS was published at a time when COVID-19 seemed to be receding, data from recent weeks shows that cases are rising in certain parts of the country. The CDC has issued a new facemask recommendation, which advises that individuals wear masks when indoors in public spaces if they are in a county with substantial or high COVID-19 transmission. Accordingly, a healthcare employer who complies with the ETS and allows vaccinated employee to unmask in public spaces, in a county with substantial or high COVID-19 transmission, would potentially run afoul of the CDC’s updated guidance.
Healthcare employers were unclear whether continued adherence to the ETS, and its facemask exceptions, would be permissible given the new CDC Guidance and OSHA’s General Duty Clause, which requires employers to keep a workplace free from any recognized hazard. In terms of the impact the new CDC guidance has on ETS compliance, OSHA has published the following disclaimer on its website:
OSHA has reviewed the latest guidance, science and data on COVID-19 and has consulted with the Centers for Disease Control and Prevention (through the National Institute for Occupational Safety and Health). DOL has determined that neither CDC’s guidance on healthcare settings nor the underlying science and data on COVID-19 in healthcare settings has materially changed in a way to necessitate changes in the health and safety requirements contained in the ETS released on June 10, 2021. OSHA has determined that no changes to the ETS are necessary at this time, but the agency will continue to monitor and assess the need for changes each month.
Accordingly, OSHA has made it clear that permitting mask exceptions for vaccinated employees will still be permissible for employers, despite the new CDC guidance. It seems that OSHA understands that the data from the pandemic is constantly in flux and will take its time in revisiting the ETS or any requirements for employers, rather than react in a knee-jerk fashion. For employers this is an encouraging sign and indicates that OSHA’s enforcement priorities are not subject to sudden reversals as may have been the case with the CDC’s guidance.