Aug. 17, 2022

Latest COVID-19 Guidance for Employers

Revised COVID guidance from the CDC - August 2022

The nation’s federal health authorities marked the next chapter of the pandemic today by significantly loosening many COVID-19 recommendations – including dropping the “six-foot” social distancing rule – thereby lightening employers’ burden to manage the virus. While the CDC’s August 11 announcement of revised guidelines comes as a welcome step in the years-long battle against the novel coronavirus, it doesn’t necessarily mean it’s time to drop your guard and pretend that COVID-19 is gone completely. Here are the 10 top questions you should be asking now, along with practical answers to help you navigate this next phase.

Why did the CDC loosen its COVID-19 recommendations? “The current conditions of this pandemic are very different from those of the last two years,” CDC epidemiologist Greta Massetti said yesterday in a news briefing accompanying the release of the revised guidance. Rather than attacking the virus in every possible situation, the new guidance reflects the fact that a combination of vaccinations and therapeutics have curbed severe illness and death from COVID-19, and emphasis should now be placed on protecting high-risk individuals.
What is the practical impact of the revisions? Essentially the CDC is putting most of the burden on avoiding and dealing with COVID-19 on individuals instead of employers and businesses.
What are the CDC’s new guidelines for social distancing and the six-foot rule? In perhaps the biggest change to the nation’s approach to the virus, the CDC says that the six-foot social distancing rule – which has mostly fallen by the wayside for most of the country anyway – is no longer emphasized. Although distancing is still one way to mitigate the likelihood of infection, it is now just one of many other methods suggested by the CDC.
Should employers routinely screen apparently healthy employees for potential COVID-19 cases? The CDC says this is no longer necessary. Instead, when considering whether to implement screening testing for asymptomatic people with no known exposure to COVID-19, the only workplace settings recommended to go this route include those with congregate housing and limited access to medical care.
What about contact tracing after positive cases? The CDC now only recommends case investigation and contact tracing in healthcare settings and certain “high-risk congregate settings” like nursing homes. In all other circumstances, the CDC says that public health efforts should instead focus on notifying those potentially exposed to positive COVID-19 cases and providing accurate information and testing resources to them.
When should individuals get a COVID-19 test? According to the CDC, people should only seek testing when they are either symptomatic or have a known or suspected exposure to someone with COVID-19.
What should workers do if exposed to COVID-19? Quarantine of exposed persons is no longer recommended – regardless of vaccination status. This is another significant change, as the CDC previously recommended that unvaccinated individuals quarantine for at least five days after exposure. Instead, the CDC recommends that those who have been exposed to an infected person wear a mask for 10 days around others when indoors in public. They should also test for COVID-19 at least five days after exposure (or sooner if they are symptomatic) – again, irrespective of their vaccination status.
What should workers do if they are symptomatic or infected? The CDC still recommends that symptomatic or infected persons promptly isolate and remain in isolation for at least five days. If they must be around others, they should wear a well-fitting, high-quality mask or respirator.

The CDC says they can end isolation after five days only when they are without a fever for at least 24 hours (without the use of medication) and all other symptoms have improved. However, the CDC does not recommend that a person take a test to exit isolation. Just as before, though, they should continue to wear a mask or respirator around others at home and in public through day 10.
People who have access to antigen tests and choose to use testing to determine when they can discontinue masking should wait to take the first test until at least day six, and they are without a fever for at least 24 hours (without the use of fever-reducing medication) and all other symptoms have improved. Taking two antigen tests (with at least 48 hours between tests) provides more reliable information, the CDC says, because of improved test sensitivity. The CDC says two consecutive test results must be negative to discontinue masking. If either test result is positive, the person should continue to wear a mask around others and continue testing every 48 hours until they have two straight negative results.

9. What are the CDC’s guidelines on vaccines and masking? These recommendations have not changed.

Vaccines – The CDC says it is important to continue to increase vaccination coverage and ensure that everyone is up to date with boosters. It recommends that vaccination is still an essential strategy in curbing the impact of COVID-19, so you should consider this recommendation as you decide whether to mandate the vaccine for your workers and patrons (here is a helpful resource to consider when making this decision at your place of business).
Masking – The CDC has retained its “community level” stance in recommending masking based on the current levels of COVID-19 in the local area.
a.At the low Community Level, the CDC has no masking recommendations.b.At the medium Community Level, the CDC recommends adding masking or respirator protections for those at high risk for severe illness.c.At the high Community Level, the CDC recommends that all persons wear masks indoors in public settings like workplaces and businesses

What does OSHA say about all of this?
For employers concerned about legal liability, this is the million-dollar question. After all, the CDC has no enforcement authority and will not be the agency knocking on your door to inspect your workplace safety. Instead, that falls on the Occupational Safety and Health Administration (OSHA) or its state equivalents across the country. OSHA is the workplace safety arm of the Department of Labor that has the power to investigate and cite businesses for unsafe conditions. We have already seen OSHA levy massive fines against employers for allegedly not following COVID-19 safety protocols, so this is the agency whose opinion matters most.

The bad news is that OSHA has not updated its own COVID-19 workplace safety recommendations regarding for almost a year. Instead, its website says “UPDATE COMING SOON” – the same message that has appeared there since at least March 2022. The good news is that OSHA largely defers to the CDC when it comes to pandemic-related guidance, and we fully expect the agency to eventually adopt these recommendations as best practices.

For now, businesses choosing to follow the new CDC guidelines should point to them if OSHA comes knocking at their door inquiring about COVID-19 protocols. It would certainly be imprudent for OSHA to cite and fine an employer for strictly following the CDC’s guidelines absent unusual circumstances.

Source: Alex Castro, Patrick W. Dennison, and Samantha J. Monsees from Fisher Phillips

COVID guidelines prior to CDC changes in August 2022

COVID guidelines

Have you tested positive for COVID-19 or have mild symptoms and are waiting for test results?

Here’s what to do:

Isolate. Stay at home for at least 5 days.*
To keep others safe in your home, wear a mask, stay in a separate room and use a separate bathroom if you can.
Do not travel for 10 days.
If you can’t wear a mask, stay home and away from other people for 10 days.
To calculate the recommended time frames, day 0 is the day you were tested if you don’t have symptoms, or the date your symptoms started.

Day 6: Do a self-check. How are you feeling?

If no fever without fever-reducing medication for 24 hours, you can leave isolation. Keep wearing a mask around other people at home and in public for 5 more days (days 6-10).
If symptoms are not improving and/or still have fever, continue to stay home until 24 hours after your fever stops without using fever-reducing medication and your symptoms have improved.
After you feel completely better, keep wearing a mask around other people at home and in public through day 10.
You could have loss of taste or smell for weeks or months after you feel better. These symptoms should not delay the end of isolation.

*If you are moderately or severely ill (including being hospitalized or requiring intensive care or ventilation support) or immunocompromised, please talk to your healthcare provider about when you can end isolation. Please refer to COVID-19 Quarantine and Isolation for guidance on isolation in healthcare settings and high risk congregate settings (such as correctional and detention facilities, homeless shelters, or cruise ships).

Recommendations for COVID-19 Close Contacts

You were in close contact if you were less than 6 feet away from someone with COVID-19 for a total of 15 minutes or more over a 24-hour period (excluding K-12 settings). Here’s what to do to protect others from your possible infection:

Quarantine if you are not up to date with COVID-19 vaccines/boosters or didn’t have COVID-19 in the past 90 days.
Stay home and away from other people for at least 5 days.
If you are up to date or had COVID-19 in the past 90 days you do not have to quarantine.
Avoid travel through day 10.
Wear a mask around other people for 10 days.
Watch for symptoms of COVID-19 for 10 days.

Testing after close contact:

Get a COVID-19 test on or after day 5 or if you have symptoms.
People who had COVID-19 in the past 90 days should only get tested if they develop symptoms.
If you test negative, you can leave your home. Masking is recommended through day 10.
If you test positive or have symptoms, isolate away from other people. Stay home for at least 5 days, do not travel for 10 days.
If you are unable to get tested, you can leave your home after day 5 if you have not had symptoms. Keep wearing a mask in public and avoid travel through day 10.
To calculate the recommended time frames, day 0 is the date you last had close contact with someone with COVID-19.

Business necessity of COVID-19 screening testing no longer presumed under EEOC Guidance - July 2022

At the outset of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) took the position that the Americans with Disabilities Act (ADA) standard for conducting medical examinations (job-related and consistent with business necessity) was always met for COVID-19 viral screening testing. On July 12, 2022, the EEOC updated its position in light of the evolving nature of the COVID-19 pandemic. Now employers are required to "assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing."

The EEOC made it clear that this new update is not a pronouncement on whether "testing is or is not warranted." Instead, the new update allows employers to make their own assessments, given the evolving nature of the pandemic, to determine whether testing is consistent with the requirements of the ADA. The EEOC has given several possible considerations for employers evaluating the business necessity of viral testing, including the:

level of community transmission;
vaccination status of employees;
accuracy and speed of the various types of COVID-19 viral tests;
likelihood of breakthrough infections in those up to date on vaccinations;
possible severity of illness and ease of transmissibility of the current variant or variants;
type of contacts employees may have with others in the workplace or elsewhere (e.g., contact with medically vulnerable individuals); and
potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC directs employers to check the latest U.S. Centers for Disease Control and Prevention guidance to determine whether viral screening testing is appropriate for the employees who will be tested. It is important to note that any testing must be viral, as the EEOC continues to forbid antibody testing.

The EEOC also modified its guidance for employers' requirements of an employee returning to work after a COVID-19 infection. The EEOC continues to allow an employer to require a doctor's note certifying it is safe for an employee to return (no risk of transmission) and that the employee is able to perform the job duties. The EEOC notes that COVID-19 is not always a disability, so such an inquiry might not be a disability-related inquiry; if it were, however, "it would be justified" because it would be consistent with the business necessity standard, as it would be "related to the possibility of transmission and/or related to [the] employer's objective concern about the employee's ability to resume working." The EEOC now also states that employers may, as an alternative, simply follow CDC guidance to determine whether it is safe for an employee to return.

Key Takeaways. Employers may want to consider examining any mandatory screening testing program to determine whether it is consistent with business necessity. In addition, employers may want to continue to monitor the ever-changing guidance from the CDC, as well as state and local health departments, when reviewing their COVID-19 screening and response protocols. Employers may also want to keep records of the changing guidance, as this will allow them to demonstrate reliance on these changes for any future challenges to their COVID-19 policies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Christine Bestor Townsend and Katlyn Q. McGarry from Ogletree, Deakins, Nash, Smoak & Stewart, (c) Mondaq Ltd, 2022

The EEOC has updated their covid Q&As, focusing on disability issues - Dec 2021

On December 14, the EEOC once again updated its COVID-19 technical assistance. The question-and-answer (Q&A) series has been updated to add a new Section N, which clarifies the circumstances under which COVID-19 may be considered a disability under the ADA and the Rehabilitation Act. The EEOC has updated its guidance on employment and COVID-19 about 20 times during the ongoing pandemic.

Section N focuses broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.

Highlights. The EEOC underscored the following key information:

In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. However, employers can choose to do more than the ADA requires.
An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Broad focus. The EEOC noted the Departments of Justice and Health and Human Services on July 26, 2021, issued Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557, which focused only on long COVID. In contrast, the updates to the EEOC’s Q&A series focus more broadly on COVID-19 in the context of Title I of the ADA and Section 501 of the Rehabilitation Act, which cover employment.

“This update to our COVID-19 information provides an additional resource for employees and employers facing the varied manifestations of COVID-19,” said EEOC Chair Charlotte A. Burrows. “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.”

What's next for OSHA's Covid ETS?

OSHA has officially withdrawn its Emergency Temporary Standard for Covid vaccination or testing for large employers. Instead, the ETS will serve as a proposed rule for a permanent standard that is likely to apply to more specific workplace risks. Read the Feb 8 article here.

LINKS TO NEWS ABOUT VACCINE MANDATES:

OSHA's statement to withdraw its ETS for large employers

Legal summary of the Supreme Court's stay on OSHA's ETS - Jan 18 article

Supreme Court stays large employer mandate but upholds healthcare mandate - Jan 13 article

Summary of the Supreme Court deliberations. - Jan 7 article

NCDOL statement on the halt of the vaccine or test mandate

On January 13, Labor Commissioner Josh Dobson released the following statement regarding the action by the U.S. Supreme Court to halt the Biden administration’s vaccine mandate:

“Earlier today, the U.S. Supreme Court halted the Biden administration’s attempt to force employers to require COVID-19 vaccines or testing as a condition of employment. In its opinion today, the Court found that the federal government lacked the statutory authority to impose the mandate. Given the strongly worded ruling, I hope that the U.S. Department of Labor will withdraw the rule and finally put an end to this misguided mandate. I commend the Supreme Court for its decision, and I am thankful that the ruling provides North Carolina employers and employees with much-needed reassurance.

"As I’ve said previously, a COVID-19 vaccine mandate represents a serious government overreach and is the wrong approach, especially given the current workforce shortage. I sincerely appreciate the patience and diligence of North Carolina’s workers and business community over these past few months of uncertainty and confusion. Employers have a responsibility to provide a safe and healthy workplace, and my department is committed to working with employers to make sure that happens. The Supreme Court’s decision today means that we can all refocus on strategies that will address the needs of business while at the same time protecting workers.”

Tags: Employers' Blog Posts