The dizzying ride employers have endured for the past few months has finally come to a stop. Yesterday, the United States Supreme Court essentially struck down the broad OSHA ETS covering most large employers across the country, halting the vaccine mandate in its tracks. At the same time, the Court revived the more targeted CMS rule for health care employers which is now operative nationwide. Read below for a summary of the current status and guidance for employers during this Omicron-fueled COVID surge.
One month ago, the 6th Circuit reinstated the OSHA ETS requiring that all employers with 100 or more employees mandate vaccination or masking and testing. The parties opposing the ETS filed nearly immediate petitions to the Supreme Court on December 15, asking the Court to overturn the decision. At the same time, the Biden administration sought review of two lower court decisions staying the CMS rule requiring health care workers to be vaccinated in several states. On December 22, the Court announced it would hear oral arguments for both cases in a special session. Those arguments took place extraordinarily quickly thereafter, on January 7, 2022. On January 13, the Court announced its decisions.
The arguments on both sides focused mainly on whether OSHA has the power to promulgate the ETS, which mandates all covered employers to implement one of two policies: (1) a policy requiring all employees to become vaccinated against COVID-19; or (2) a policy requiring all employees to either become vaccinated or receive regular COVID-19 tests and wear a mask. The petitioners, who opposed the ETS, argued that the rule was too broad and that OSHA and the federal government lacked the power to promulgate such an expansive rule. On the other hand, the government argued that Congress appropriately delegated power to OSHA to create such a rule and that it was properly within the federal government’s power given the far-reaching effects of the COVID-19 pandemic.
On January 13, the Court ruled 6-3 that OSHA had gone too far with the ETS. Although given the procedural posture of the case and the relief sought by the petitioners is technically a stay; the bottom line is the stay will remain in effect unless and until the Supreme Court decides otherwise following a decision on the substantive issues by the 6th Circuit (read: no time soon, if ever). The practical result is that OSHA’s ETS will not be coming back. While employers at least finally have an answer on the ETS front, the legal and practical issues facing employers managing through this current COVID surge continue to evolve. The updated CDC guidance and other key issues are discussed below.
In stark contrast to the Court’s opinion with respect to the OSHA ETS, the Court (5-4) upheld CMS’s mandatory vaccination requirements for Medicare and Medicaid providers. The rule had been stayed in several states by lower courts, whose stays were “stayed” by the Supreme Court. For information on the CMS requirements and effective dates, see information from our Alerts on December 15, 2021 and January 3, 2022.
Revised Isolation and Quarantine Guidance
The Supreme Court’s ruling follows in the wake of the CDC’s controversial decision to reduce the number of days in which the agency advises that individuals should isolate/quarantine (i.e., do not leave home - the important point for employers) when testing positive for or exposed to someone with COVID-19.
The CDC’s guidance shortened the amount of time an individual is required to quarantine after testing positive for COVID-19 from ten days down to five days if the individual is asymptomatic or their symptoms are resolving (without fever for 24 hours). After the five days of isolation, the individual is required to wear a mask “when around others” for an additional five days in order to minimize the risk of spreading the virus.
In addition to the change for those who test positive for COVID-19, the CDC also updated the recommended quarantine period for anyone who is exposed to COVID-19. For those who are unvaccinated or more than six months out from receiving their second dose of the Pfizer or Moderna vaccine (or more than two months after the Johnson & Johnson vaccine) and not yet boosted, the CDC now recommends—similar to what is described above—a five-day quarantine followed by “strict” mask use for an additional five days. However, the CDC notes that if quarantining for five days is “not feasible,” it is imperative that an exposed person wear a well-fitting mask at all times when around others for ten days after exposure. The CDC does not provide guidance or offer examples as to why a five-day quarantine may not be “feasible,” leaving open the possibility that work obligations could technically disrupt an employee’s ability to quarantine.
On the other hand, individuals who have received their booster shot or who received their second dose of the Pfizer or Moderna vaccine less than 6 months ago (or Johnson & Johnson less than 2 months ago) no longer need to quarantine following exposure, but should wear a mask for 10 days after exposure. While not required, the CDC also advises that best practice includes receiving a COVID-19 test at day five after exposure. This hopeful recommendation, of course, is thwarted by testing shortages in many areas of the country.
For ease of reference, Quarles & Brady provides the below chart from the CDC outlining the current quarantine guidance in light of the agency’s recent changes to its recommendations:
Next Steps for Employers
The Court’s stay, for all intents and purposes, has killed the OSHA ETS as we know it. What remains is another tough question in the laundry list of tough question for employers: What do we do now?
Answers to this inquiry remain different for employers in different stages of ETS compliance.
- Employers that have already implemented ETS-compliant policies and procedures, or other forms of mandatory vaccination, may be able to maintain such policies and procedures, and many large multi-state employers have already announced their intent to do so. However, employers with operations in states that have enacted restrictions on mandatory vaccination (to date: Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia) may be prohibited from fully effectuating an OSHA ETS-compliant policy absent the federal preemption protections of the ETS. Employers with operations in any of the aforementioned states that have implemented an ETS-compliant or other mandatory vaccination program should contact Quarles & Brady for further guidance.
- Employers whose operations are not subject to any state law restricting or prohibiting vaccination programs, and wish to maintain an OSHA ETS-compliant vaccination policy should carefully consider the practical effects of doing so, including: costs associated with weekly testing, administrative burden associated with tracking vaccination status and/or ensuring compliance with testing or masking requirements, and potential impact on workplace culture, employee morale, recruiting and retention.
- Employers that have taken steps to implement ETS-compliant policies and procedures, but have not yet achieved full compliance will likely want to cease compliance efforts, and either effectuate a new vaccination policy or restore a previous policy.
- Employers that have not taken any steps to implement ETS-compliant policies and procedures, and have been waiting on the Court’s ruling to take additional steps need not take any action at this time.
Though employers are not required to expend efforts toward ETS compliance for the foreseeable future, it is important to note that OSHA’s non-ETS COVID-related requirements still apply. Notable COVID guidance includes the January 29, 2021 “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”, last updated in August. Therein, OSHA encouraged employers to follow CDC guidance. OSHA has not updated this guidance since mid-August, probably due to the fact they were focusing on the ETS, but likely will soon. It is safe to assume that OSHA will continue to encourage employers to follow the most up to date CDC guidance.
Currently, the CDC recommends that all individuals wear a mask in indoor public places if they are either (1) not fully vaccinated; (2) fully-vaccinated and in an area with substantial or high transmission; or (3) fully vaccinated and with weakened immune systems. Notably, as of the date of this writing, this covers virtually the entire United States, and employers should at least currently recommend masking for all employees. Employers should continue to monitor transmission rates in their areas and update their employees as to any corresponding policy updates.
In addition, some areas of the country have reintroduced mandatory masking at the state, county, or municipality levels. Covered workplaces should be monitoring such state and local requirements. Employers are advised to communicate any policy changes, related or unrelated to local laws, to their employees as soon as practicable.
Employers may wish to review their COVID exposure protocols to determine whether they reflect the updated recommendations from the CDC (e.g., the shortened quarantine period for asymptomatic individuals who test positive for COVID). However, the relaxed CDC guidance is just that—employers can choose to retain longer isolation periods, require more stringent return-to-work conditions, and vary COVID protocols by nature of position. See our previous alert for additional guidance.
During this Omicron surge, employers should also reiterate that employees must report any positive COVID tests. What’s more, if they have not done so already, employers should reconsider their return-to-office plans, in light of the high transmissibility of Omicron. Because COVID infections caused by the Omicron variant appear to be less severe than those caused by Delta or other variants, employers with employees currently back in the workplace may wish to encourage telework on a widescale basis and/or offer telework as an option for employees who are infected with COVID but not experiencing any symptoms (and who do not wish to use PTO).
Quarles & Brady will continue to monitor developments with respect to the OSHA ETS, the CMS Rule and the latest COVID-related recommendations from the CDC.