By Conn Maciel Carey’s COVID-19 Task Force

Thankfully, it has been quite a while since there has been a material update to discuss on the COVID-19 front.  Except for those of you in the healthcare space, things continue to be pretty quiet at OSHA on that front, but as I am sure you all have seen, a week ago, on August 11^th, the CDC updated some of its COVID-19 guidance in a way that probably affects many employers’ COVID-19 protocols. 

The CDC’s new guidance, entitled Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems, scales back prior onerous recommendations for COVID-19 prevention strategies based on an acknowledgement in the guidance document that:

“with so many tools available to use for reducing COVID-19 severity, there is significantly less risk of severe illness, hospitalization and death compared to earlier in the pandemic.”

However, how the new guidance maps to workplaces is not a simple analysis.  As has been the case throughout the pandemic, trying to apply CDC’s guidance to general industry workplaces, when it is actually written for the general public or for specific sectors (most often public health agencies and healthcare) is not always intuitive, and often leads to conflicting and impossible outcomes.  Of course, that’s where OSHA is supposed to come in; i.e., to take CDC’s general guidance and explain for employers how it should apply in private industry workplaces.  But OSHA has not kept up with its duty in that regard.  Indeed, despite promises for more than five months that updated COVID-19 guidance was coming “soon,” OSHA has not chimed in about how it expects employers to map CDC’s general public guidance to the workplace since before the Delta variant struck.  So with that vacuum, here is our best take on the CDC’s updated guidance.

What Does CDC’s Updated COVID-19 Guidance Change? 

• • CDC updated its guidance for people who are not vaccinated at all or not “up to date” on COVID-19 vaccines.  The recommendations are now fully aligned with those who are fully vaccinated.
  • CDC removed its quarantine recommendations for anyone exposed to COVID-19 (“close contacts”) but not experiencing symptoms, regardless of vaccination status.  Rather, CDC recommends that the exposed person wear a high-quality face mask for 10 days and test on day 5.
  • CDC recommends that a person who tests positive for COVID-19 still isolate, but now, if after 5 days that person is fever-free for 24 hours without the use of medication and other symptoms are improving (or the person was always asymptomatic), the person can end isolation, but wear a high-quality face mask through day 10.
  • CDC no longer recommends screening testing of asymptomatic people without known exposures.
  • The updated guidance also addresses a new scheme for contact tracing that we discuss in more detail below.

What To Make Of the CDC’s New Recommendations Regarding Contact Tracing?

The new recommendations about contact tracing is the most confusing aspect of the CDC’s updated guidance.  What the document says is: “CDC now recommends case investigation and contact tracing only in health care settings and certain high-risk congregate settings.”  It seems to be a pretty reasonable reading of that language on its face that CDC is no longer recommending that employers or other entities conduct contact tracing outside the context of healthcare and nursing homes.  However, for several reasons, we think that instruction about limiting case investigation and tracing to healthcare and congregate settings was intended only for public health departments, not for general industry employers.

First, there is the obvious irreconcilable conflict between that direction – ending contact tracing – and the guidance within the same document regarding individuals identified as close contacts having to wear high quality masks for ten days and test at or after five days.  There would be no way to identify individuals who need those instructions without some form of contact tracing among co-workers.  Second, the sentence in the updated guidance that immediately follows these contact tracing recommendations references “public health efforts.”  Third, the footnote to this sentence in the guidance about contact tracing focuses exclusively on health departments, and directs the “health departments [how to] prioritize case investigation and contact tracing” efforts.  Finally, that same footnote includes a link to CDC’s existing guidance for “Prioritizing Case Investigation and Contact Tracing for COVID-19.”  The “Audience” for that guidance document are “state, tribal, local, and territorial (STLT) health departments.”

Given that it seems the recommendations for narrowing contact tracing is targeting public health departments, and that the updated guidance still recommends certain controls for close contacts (i.e., masking and testing), we think there could still be some regulatory risk associated with a decision to entirely cease contact tracing after a confirmed infection among an employer’s workforce.  That said, to the extent your contact tracing process has been rigorous and robust (e.g., tracking the potential source of the baseline infected employee’s infection, even if that was outside the workplace), we do not believe that rigorous case investigation and contact tracing is still need to comply with the current CDC guidance (although it may be needed to avoid having to record COVID-19 cases on your 300 Log).  Workplace contact tracing could simply be asking the infected employee to identify with whom they had lengthy or multiple contacts in the workplace, or just by evaluating likely exposures based on work assignments and schedule.

How Will OSHA Respond to the New CDC Guidance?

Employers should implement the new guidance into their workplace policies and ensure that their employees are complying with the updated guidance. Given that the updated guidance removes many recommendations, this should mean that employers can somewhat relax their COVID-19 policies.  However, we should be careful not to relax the policies so much that the policies are badly out of line with CDC guidance, at least without a good justification; e.g., a site-specific hazard assessment that concludes certain controls are not needed for your workplace or your workforce.

That said, while there is still some regulatory risk from deviating from CDC recommendations, it has been our impression that the overall risk of OSHA enforcement on the COVID-19 front has diminished considerably for all industries except healthcare.  OSHA is essentially focused only on the healthcare sector right now.  The agency continues to work on finalizing a permanent COVID-19 rule focused on healthcare and a permanent infectious disease standard also focused only on healthcare, while abandoning (with some encouragement from the Supreme Court) any effort to regulate non-healthcare settings.  OSHA has not updated its general industry COVID-19 guidance since before the Delta variant struck (and before the Supreme Court’s ruling in the vaccination case).  The COVID-19 National Emphasis Program is still in effect, but it has been amended a couple of times to narrow its targets essentially to only healthcare employers now.  The agency also directed a lot of time and resources this Spring and Summer to a COVID-19 enforcement blitz, but that was focused exclusively on healthcare workplaces.

As a result of all of that, over the last several months, the only COVID-19 related citations that we have seen have been specific standards; i.e., respiratory protection and recordkeeping, but not General Duty Clause violations related to deviations from CDC guidance, and all have arisen in inspections involving healthcare employers, except for one GDC citation to a manufacturer back in March, but that was based on an inspection that began last Fall.  So, although it is not our recommendation to abandon your COVID-19 controls and your efforts to keep up with CDC guidance, the enforcement risk is certainly not what it was a year ago, and we do not expect CDC’s new guidance to alter this OSHA enforcement pattern.  If anything, it makes the risk even lower.