On December 27, 2021, and January 4, 2022, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance shortening both the recommended time individuals are required to isolate after contracting COVID-19 and the quarantine period for those exposed to the virus. It is important for employers to be aware of these recent changes, particularly as the Omicron variant is surging across the United States and employers prepare for the deadlines associated with OSHA’s Emergency Temporary Standard (“ETS”) (which as of this alert is January 10, 2022). The following are highlights of the updated guidance and its potential impact on businesses.
Under the CDC’s prior isolation and quarantine guidance, individuals who tested positive for or who were exposed to COVID-19 were required to isolate or quarantine for at least ten days. Citing science demonstrating that the majority of COVID-19 transmission occurs early in the course of the illness, the CDC has significantly reduced the recommended isolation and quarantine periods. The CDC now recommends the following:
- Regardless of vaccination status, individuals who test positive for COVID-19 must isolate (stay home) for five days. If after the five days, the individual has no symptoms, or their symptoms are resolving, they may leave isolation if they are fever-free for 24 hours without the use of fever-reducing medication and other symptoms have improved (other than loss of taste/smell, which the CDC recognizes may persist). The individual should then continue to wear a mask for five additional days. If the individual continues to have a fever or the other symptoms have not improved after five days of isolation, the individual should wait to end the isolation until they are fever-free for 24 hours without the use of fever-reducing medication and other symptoms have improved.
- Individuals who are exposed to COVID-19 as a close contact, but have not met certain vaccine and/or booster requirements set out by the CDC (outlined below), must stay home for a period of five days and continue to wear a mask for an additional five days.
- Individuals who are exposed to COVID-19 as a close contact, but have met the vaccine and/or booster requirements set out by the CDC (outlined below), need only wear a mask around others for ten days. In other words, individuals meeting this criteria are not required to quarantine.
For the purposes of this quarantine guidance, the CDC considers someone sufficiently vaccinated and/or boosted if, for individuals ages 18 or older, they have completed the primary series of Pfizer or Moderna vaccine within the last 6 months, or have completed the primary series of J&J vaccine within the last two months, or have received a recommended booster shot when eligible. “Close contact” continues to be defined as “someone who was less than 6 feet away from an infected person (laboratory-confirmed or a clinical diagnosis) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes).” There are exceptions to the definition for K-12 schools.
The CDC further recommends that individuals ending isolation or quarantine take an antigen test if they have access to and want to test. The test sample should only be taken if the individual is fever-free for 24 hours without the use of fever-reducing medication and other symptoms have improved. If the test is positive, the individual should continue to isolate until day ten. If the test is negative, as outlined above the individual can end isolation but should continue to wear a well-fitting mask until day ten.
The CDC notes that these shortened recommendations do not apply to people with severe COVID-19, with weakened immune systems, or in certain congregate care settings.
Notwithstanding pushback on these shortened recommendations given the current state of the Omicron variant, the CDC has not changed its position. State regulators have also echoed the CDC’s update; the Massachusetts Department of Health, for example, has updated its guidance to align with the CDC.
Potential Effect on Employers Subject to the OSHA ETS
This update comes just as employers with over 100 employees are about to be subject to the January 10, 2022 compliance deadline for OSHA’s ETS. The ETS specifically incorporates the older version of the CDC’s isolation and quarantine guidance, however. As a result, absent further update from OSHA, employers subject to the ETS may still be required to comply with that prior guidance.* Under CDC’s prior isolation guidance, asymptomatic employees who test positive for COVID-19 may return to work once ten days have passed since that positive test, and symptomatic employees may return to work after all the following are true:
- At least ten days have passed since symptoms first appeared;
- At least 24 hours have passed with no fever without fever-reducing medication; and
- Other symptoms of COVID-19 are improving.
Additionally, for purposes of the ETS individuals are still considered to be “fully vaccinated” two weeks after their second dose of Pfizer or Moderna vaccine or two weeks after a single dose of J&J vaccine.
As guidance on required and recommended COVID-19 compliance continues to change rapidly and a Supreme Court ruling on the ETS is imminent, employers are encouraged to work with their MBJ attorney to ensure they are complying with any updated information from the CDC, OSHA or other governmental agencies, or changes to the law.
* UPDATE: As of January 12, 2022, after the publication of this alert, OSHA updated its ETS FAQs on its website (Question 7.J.) to state that it will exercise enforcement discretion and permit employers to follow updated versions of the CDC’s Isolation Guidance. Thus, employers may use the CDC’s updated isolation and quarantine guidance in their vaccination policies.
Brendan T. Sweeney is an attorney with Morgan, Brown & Joy, LLP, and may be reached at (617) 523-6666, or at firstname.lastname@example.org. Morgan, Brown & Joy, LLP focuses exclusively on representing employers in employment and labor matters.
This alert was prepared on January 6, 2022. This alert was updated on January 12, 2022.
This publication, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Morgan, Brown & Joy, LLP and its attorneys. This newsletter is intended for general information purposes only and you should consult an attorney concerning any specific legal questions you may have.