By Conn Maciel Carey’s COVID-19 Task Force
On December 27, 2021, the CDC updated and shortened its recommended isolation and quarantine periods for the general population. To be precise, yesterday CDC issued a media statement laying out its new guidance, but CDC’s actual Isolation Guidance webpage has not yet been updated. CDC explained in the statement that:
“[b]oth updates [to the isolation and quarantine periods] come as the Omicron variant continues to spread throughout the U.S. and reflects the current science on when and for how long a person is maximally infectious.”
What are CDC’s New Isolation and Quarantine Guidelines?
With respect to isolation (which relates to behavior after a confirmed infection), CDC states:
“[g]iven what we currently know about COVID-19 and the Omicron variant, CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others.”
Explaining the change, CDC maintains that it is “motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and 2-3 days after. Therefore, people who test positive should isolate for 5 days, and if asymptomatic at that time, they may leave isolation if they mask for 5 days to minimize the risk of infecting others.”
Additionally, with respect to quarantine (which refers to the time following exposure to the virus or close contact with someone known to have COVID-19), CDC states:
“[f]or people 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) and not yet boosted, CDC now recommends quarantine for 5 days followed by strict mask use for an additional 5 days.” CDC also provides that, “[a]lternatively, if a 5-day quarantine is not feasible, it is imperative that an exposed person wear a well-fitting mask at all times when around others for 10 days after exposure.”
For individuals who have received their booster shot, CDC states that such individuals do not need to quarantine following an exposure, but should wear a mask for 10 days after the exposure. Indeed, CDC presents some interesting data about booster shots, and continues to emphasize the importance of vaccination:
Data from South Africa and the UK demonstrate that vaccine effectiveness against infection for two doses of an mRNA vaccine is approximately 35%. A COVID-19 vaccine booster dose restores vaccine effectiveness against infection to 75%. COVID-19 vaccination decreases the risk of severe disease, hospitalization, and death from COVID-19. CDC strongly encourages COVID-19 vaccination for everyone 5 and older and boosters for everyone 16 and older. Vaccination is the best way to protect yourself and reduce the impact of COVID-19 on our communities.
Finally, for all those exposed to the virus or who experienced a close contact, CDC provides that best practice would also include a test for SARS-CoV-2 at day 5 after exposure, and that, if symptoms occur, individuals should immediately quarantine until a negative test confirms symptoms are not attributable to COVID-19.
To summarize the new recommendations, CDC provides the following graphic:
The CDC’s media statement concludes with the following quote from CDC Director, Dr. Rochelle Walensky:
“The Omicron variant is spreading quickly and has the potential to impact all facets of our society. 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. These updates ensure people can safely continue their daily lives. Prevention is our best option: get vaccinated, get boosted, wear a mask in public indoor settings in areas of substantial and high community transmission, and take a test before you gather.”
How do CDC’s New Guidelines Affect OSHA’s Vaccination, Testing, and Face Coverings ETS?
The answer is very easy with respect to quarantine for close contacts, but it is not so simple with respect to isolation for confirmed positive employees. OSHA’s vaccinate-or-test ETS does not include any requirements around quarantine, so the only potential regulatory risk associated with an employer adopting the new relaxed quarantine policy is enforcement under the OSH Act’s General Duty Clause, and OSHA has consistently relied on and referenced the most current CDC guidance for General Duty Clause enforcement. So we are very confident that employers can follow the new, relaxed CDC guidance about quarantine.
As for isolation / return-to-work requirements for confirmed positive employees, we expect OSHA will align its expectations with the updated CDC guidance, but that is not guarantee, and the change is not automatic. OSHA’s Vaccination, Testing, and Face Coverings ETS includes specific return-to-work criteria for confirmed positive employees. Specifically, employers must keep COVID-19 positive employees removed from the workplace until the employee meets one of three return-to-work options. One of those options includes a reference to a specific version of a specific CDC guidance document – the February 18, 2021 “Isolation Guidance,” which is incorporated by reference in the ETS.
Before the CDC announced its new recommendations earlier this week, its Isolation Guidance generally provided that asymptomatic employees may return to work after 10 days since the positive test, and that symptomatic employees may return to work after all the following are true:
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- At least 10 days have passed since symptoms first appeared, and
- At least 24 hours have passed with no fever without fever-reducing medication, and
- Other symptoms of COVID-19 are improving (loss of taste and smell may persist for weeks or months and need not delay the end of isolation).
For rulemaking purposes, OSHA cannot lawfully cite to a piece of non-mandatory guidance that can be updated without following rulemaking procedures (that would be an unlawful delegation of rulemaking authority to the CDC). That is why the ETS references a specific guidance document with a specific date.
Accordingly, OSHA would technically have to amend the ETS or otherwise issue an interpretation letter, FAQ, or enforcement memorandum to permit employers to move from that 10-day isolation period to the new 5-day period in the updated version of that isolation guidance. We do expect that will happen, but until it does, it would technically be non-compliant for employers to relax the isolation period in their Vaccination, Testing, and Face Coverings written policy.
Unless or until OSHA amends the ETS or otherwise signals that employers may relax their isolation policies, employers may still have a good defense to an OSHA citation under the ETS for following the relaxed isolation time period. Specifically, there is fairly well settled OSHRC jurisprudence that if you comply with a more recent version of an industry consensus standard that underlies an OSHA standard, that should be treated by OSHA as a de minimis violation, which should not be cited at all. But that is not a guarantee and would be in the context of defending a citation rather than demonstrating compliance.
We have already reached out to contacts at OSHA to try to get an indication of whether OSHA intends to amend the ETS or otherwise express approval of employers following the new CDC isolation guidance. Since December 17th, when the Sixth Circuit lifted the Stay of the ETS that had been implemented by the Fifth Circuit in November, OSHA has been back at work updating its guidance, and we expect this will be an issue that OSHA addresses, but unfortunately, we do not expect an answer until after New Year’s because of use-it-or-lose-it vacation and the agency’s extreme focus right now on the ETS legal challenge briefing (due tomorrow) and oral argument (scheduled for January 7th) before the US Supreme Court.
We will provide an update as soon as we learn anything one way or the other.
UPDATE – DECEMBER 10, 2022
Big news to share about the updated CDC guidance. After much haranguing, we got our contacts at federal OSHA to confirm this afternoon that employers can satisfy the medical removal/return-to-work elements of fed OSHA’s vaccinate-or-test ETS by complying with the updated CDC isolation guidance. We have been assured that OSHA will soon be issuing guidance about the ETS that acknowledges that employers may follow either the criteria spelled out in the ETS or the new CDC guidance. You still need to be aware of any state- or county- unique requirements, but for purposes of OSHA compliance, the new CDC guidance will be acceptable.