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Federal Vaccine Mandate Update & More Changes to COVID-19 Protocols

One federal vaccine mandate has recently been reinstated by the Sixth Circuit Court of Appeals. Read on to learn more about the new effective dates for the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing; Emergency Temporary Standard for employers with 100 or more employees OSHA (Rules); and new standards from Centers for Disease Control (CDC) on how long employees impacted by COVID-19 should isolate and quarantine.

OSHA Rules: Date for Compliance Set by OSHA, But Rules Face Litigation at the U.S. Supreme Court

In November 2021, we shared guidance on the OSHA Rules detailing some of their specific requirements (Link Here). As you may recall, this is the federal vaccine mandate that requires employers with 100 or more employees to require employees get vaccinated or submit to weekly testing. At that time, we noted that the OSHA Rules were subject of several on-going legal challenges and that on November 16, 2021, the U.S. Sixth Circuit Court of Appeals was selected as the sole circuit court to hear those challenges.

On December 17, 2021, the U.S. Sixth Circuit Court of Appeals lifted the stay blocking the OSHA Rules from taking effect. The Court’s order means the Sixth Circuit did not alter what steps covered employers must take to keep their workforce safe.[1] This means our previous guidance on the OSHA Rules remains a resource for employers desiring to learn more about their potential obligations under the OSHA Rules (Link Here).

Following the Sixth Circuit’s decision, OSHA announced new deadlines for compliance with the Rules (Link Here). For reference, employers covered by the OSHA Rules must comply with its terms on the following schedule:

  • By January 10, 2022, comply with all requirements of the OSHA Rules, except certain requirements on weekly employee testing (if elected).
  • By January 10, 2022, adopt a written plan detailing the employer’s compliant policies, including but not limited to:
  • Policy on vaccination (if any);
  • Employer support for employee vaccination;
  • COVID-19 testing for employees who are not fully vaccinated;
  • Employee notification to employer of a positive COVID-19 test and removal; and
  • Mandatory face covering for certain not fully vaccinated employees.

OSHA has  example versions of the written plan available on its website.

  • By February 9, 2022, if electing a policy that allows employees to remain unvaccinated, start a weekly testing protocol for certain employees who are not fully vaccinated.

At the same time, the OSHA Rules still face an uncertain future due to ongoing litigation. The legality of the OSHA Rules will be heard by the U.S. Supreme Court on January 7, 2022. Thus, there is a possibility that the OSHA Rules may still change.

OSHA’s enforcement of the Rules while litigation is pending in front of the U.S. Supreme Court does create uncertainty for covered employers. At this time, businesses should evaluate whether the OSHA Rules apply to them and comply with OSHA’s deadlines for introducing certain policies for their business, as applicable. If we can be of any assistance on this matter, please do not hesitate to contact us.

New Guidance from CDC Impacts How Long Employees Must Isolate or Quarantine:

Due to changes brought by the Omicron variant, the Centers for Disease Control has modified its guidance on how long individuals who have COVID-19 should isolate, and how long those exposed should quarantine. As further detailed, the guidance lowers isolation and quarantine periods in certain circumstances. CDC, CDC Updates and Shortens Recommended Isolation and Quarantine Period for General Population (Accessed December 28, 2021)(Link Here).

This new guidance impacts Michigan businesses because Michigan’s COVID-19 Employment Rights Act adopted CDC’s definitions of “isolation period” and “quarantine period.” MCL 419.401. Since Michigan law requires employees stay out of the workplace until their “isolation period” or “quarantine period” has ended or other conditions are met, the CDC shortened isolation and quarantine periods means impacted employees may be able to report to work sooner.

Under Michigan’s COVID-19 Employment Rights Act and the updated CDC guidance on isolation and quarantine periods, the following timelines are in effect:

All Employees    Vaccinated Employees      Unvaccinated Employees

If Employee Has Close Contact

An employee who has close contact with a COVID-19 positive individual must remain off work until one of the following applies:

  1. The employee is advised by a health care professional that their quarantine period is complete; or
  2. The CDC’s recommended quarantine period has passed, as determined by:
    • Individuals who were exposed to someone with COVID-19 and have been boosted, completed their series of Pfizer or Modern within the last 6 months, or completed their series of Johnson & Johnson within 2 months need not quarantine at all, but instead should:
      • Wear a mask around others for 10 days.
      • Test on day 5, if possible
    • Individuals who were exposed to someone with COVID-19 and you have not been boosted, completed your series of Pfizer or Modern more than 6 months ago, or completed your series of Johnson & Johnson more than 2 months ago, or are unvaccinated must:
      • Isolate at home for 5 days. Continue wearing a mask around others for an additional 5 days.
      • If isolation is not possible, mask for 10 days.
      • Test on day 5, if possible

 

If Employee Tests Positive

An employee who tests positive for COVID-19 cannot return to work until they are advised by their health care provider that they may leave isolation or all of the following have occurred:

  1. 24 hours have passed since the employee’s last fever without the use of fever-reducing medications;
  2. The employee has improvement in COVID-19 symptoms;
  3. The CDC recommended isolation period (regardless of vaccination status) has passed:
    •  Isolate at home for 5 days. If asymptomatic after 5 days, isolation may end. If symptoms persist, the isolation should be extended until symptom improvement.
    • Continue wearing a mask around others for an additional 5 days.

 

If An Employee Displays Symptoms of COVID-19 But Has Not Yet Tested Positive

In this scenario, an employee must remain off work until either:

  1. The employee receives a negative COVID-19 test; or
  2. All of the following apply:
    • The employee has improvement in COVID-19 symptoms;
    • 24 hours have passed since the employee’s last fever without the use of fever-reducing medications; and
    • The CDC’s isolation period has passed

SPECIAL NOTE: The CDC only updated its guidance for those who test positive or are exposed to someone else with COVID-19. Therefore, if an employee does not test but is symptomatic, the CDC still recommends 10 days of isolation. However, Michigan law expressly gives the employer the right to request that a symptomatic employee obtain a test, and if the employee fails to make a reasonable effort to do so within 3 days, he/she could be subject to discipline or discharge.

It is important to note that Michigan’s COVID-19 Employment Rights Act imposes a floor and not a ceiling on how long an employee must isolate or quarantine when impacted by COVID-19. If an employer would like impacted employees to stay removed from the workplace longer, certain options may be available. However, since the decision to extend an employee’s isolation or quarantine period is context specific, we encourage you to consult your attorney.

Conclusion

COVID-19 has certainly been a challenge that requires employers to respond nimbly to evolving standards. The OSHA Rules that, among other obligations, require certain employers to ensure their staff is fully vaccinated or submit to weekly testing is the newest iteration of these evolving standards. If we can be of any assistance in your business executing its obligations under the OSHA Rules, or if you have any other COVID-19 related inquires, please do not hesitate to reach out to our firm.

This communication is not intended to constitute legal advice. COVID-19 regulations and guidelines are evolving rapidly and each of your circumstances are unique, so we encourage you to reach out to us if you have questions about this or other COVID-19 related government action.

[1] Massachusetts Building Trades Council, et al. v United States Department of Labor, Occupational Safety and Health Administration, et al., Case Nos. 21-7000 (CA 6) (December 17, 2021) at p 37.

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