The last two weeks have provided a rollercoaster ride for employers as they grapple with the resurrection of the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (“ETS”) by the Sixth Circuit Court of Appeals, updated guidance from OSHA on the testing protocols under the ETS and new CDC guidance shortening quarantine periods. As policies are revised and re-revised to reflect all the changes, the January 7, 2022 oral argument date has been set by the United States Supreme Court where it will presumably decide the fate of the ETS, a mere three days before the first deadline for implementation.

As we discussed in our prior blog post here, on December 17, 2021, the Court of Appeals for the Sixth Circuit dissolved the previously issued stay on OSHA’s vaccine or testing requirement for private employers with at least 100 employees. OSHA updated its webpage stating that it will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the ETS’ testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. The final say on the ETS rests with the Supreme Court, which will hear oral argument on January 7 before making a determination. While the legality of the ETS plays out in the country’s highest court, employers should be cognizant of how OSHA’s recent ETS guidance and the CDC’s newly revised quarantine and isolation recommendations affect operations.

OSHA Updates Testing Guidance

OSHA updated the Frequently Asked Questions (“FAQ”) addressing the implementation of the ETS, which includes a notable change to permissible testing procedures. OSHA’s guidance remains that when an employee uses an over-the-counter (“OTC”) test for purposes of complying with the ETS’ testing requirements, the test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. 

However, OSHA’s updated its FAQs to include new language, which provides that OTC tests featuring digital reporting of results, including a testing date and timestamp, are not considered to be "self-read." The practical impact for employers being that observation by the employer or an authorized telehealth proctor is not required where these digital types of tests are used. For example, an OTC test whose results are interpreted with a smartphone would not be considered “self-reported.” While this addition to the FAQs likely seeks to alleviate the logistical concerns in proctoring testing, employers should keep a few things in mind and consider whether digitally reported OTC tests are a practical alternative.

• There appears to be a limited number of OTC tests with digital reporting capabilities currently in the marketplace. While this may change as manufacturers get wind of OSHA’s updated guidance and try to position their products accordingly, employers may have limited selection for the foreseeable future. 
• The tests could be more costly.
• Digital reporting capabilities may only work with certain types of smartphones running specific software. With software updates being regular and employees having different phones and software, the potential for technical difficulties seems all but certain.

CDC Recommends Shortened Isolation and Quarantine Periods

The CDC released new guidance regarding the isolation and quarantine period for those who test positive for COVID and/or come in close contact with an individual with COVID. The highlights are as follows:

• The isolation period for people with COVID is changed from 10 days to 5 days if the person is asymptomatic. The CDC still recommends that those individuals wear a mask for 5 days when around others.

For those exposed to COVID and asymptomatic after the exposure, the CDC’s guidance is broken down by those who are vaccinated and those who are not.

• Unvaccinated: CDC now recommends quarantine for 5 days followed by strict mask use for an additional 5 days.
• Vaccinated: Individuals who have received their booster shot, or had their last Pfizer or Moderna vaccine within the last 6 months, or J&J within the last 2 months, do not need to quarantine following an exposure, but should wear a mask for 10 days after the exposure.
• Everyone (regardless of vaccination status): For all those exposed, best practice includes a test at day 5 after exposure. If symptoms occur, individuals should immediately quarantine until a negative test confirms symptoms are not attributable to COVID.

Where these changes dramatically alter the procedures or timeline for employees staying home and returning to the workplace, employers should adjust their COVID polices to reflect the shortened period and ensure that employees returning to the workplace after having or being exposed to COVID are adhering to the CDC’s mask wearing guidance.