The legal developments on COVID did not take a holiday in the nine days since our previous article. There have been significant developments with the various vaccine mandates, new CDC quarantine guidance, and changes to OSHA healthcare standards. Furthermore, the Supreme Court of the United States is set to weigh in imminently.
The Vaccine Mandates
Supreme Court Review of OSHA and CMS Mandates
The United States Supreme Court has set a special session for oral argument on the OSHA large employer vaccine mandate and the CMS vaccine mandate for January 7, 2022. It is rare for the Court to hear oral arguments on an emergency basis. This Court is, hopefully, responding to the incredibly difficult position employers face with the “on-again, off-again” nature of the various mandates issued from numerous federal agencies. It is also, hopefully, an indication that the Court will rule quickly following oral argument. The only issue before the Court will be whether the OSHA and CMS mandates should be permanently enjoined while the substantive litigation proceeds in lower courts. The upshot is that employers should expect clarity on their duty to comply with the two mandates relatively soon. State plan employers should note: Federal OSHA has given state plan states until January 24 to deliberate over their plan to adopt some version of the OSHA mandate. Significantly, many state plan states are petitioners in the Supreme Court challenge to the OSHA mandate. Pay attention to your state safety regulators for developments as January 24, 2022, approaches.
In our previous E-Alert, we shared the news that the Fifth Circuit partially lifted the nationwide stay on the CMS vaccine mandate, allowing the mandate to proceed in the states that did not file suit against its enforcement. CMS did not immediately respond to that development, and as a result, employers were left to rely on earlier statements from CMS that it would pause enforcement while the litigation proceeded. On December 28, CMS responded to the Fifth Circuit ruling and indicated it will implement the mandate in the states that did not file suit, which includes Virginia. CMS did change the deadlines for employers to implement the mandate: the deadline for Phase 1 implementation is January 27, 2022, and the deadline for Phase 2 implementation is February 28, 2022. Hopefully, the Supreme Court will rule on the CMS vaccine mandate prior to the January implementation deadline. As a reminder, Phase 1 requires staff at all covered healthcare facilities to have received at least the first dose of a COVID vaccine, and Phase 2 requires full vaccination (with appropriate religious and disability exemptions allowed).
The vaccine mandate for federal contractors continues to face legal setbacks. It was initially (and still is) enjoined nationwide by a federal court in Georgia in early December. On December 17 the Eleventh Circuit declined to lift that injunction. As a result, the stay remains nationwide for the time being. But even if that particular stay is ultimately lifted, employers need to be aware of the numerous other challenges across the nation which may apply regionally. Separate suits against the mandate have progressed and rulings have been issued temporarily blocking the mandate for state employers in Louisiana, Mississippi, and Indiana (See Louisiana v. Biden, W.D. La., No. 21-cv-03867, order 12/16/21), employers in Florida (See Florida v. Biden, M.D. Fla., No. 8:21-cv-02524, 12/22/21), employers in Arkansas, Alaska, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming (See Missouri v. Biden, E.D. Mo., No. 4:21-cv-01300, 12/20/21), and employers in Kentucky, Ohio, and Tennessee (See Kentucky v. Biden, E.D. Ky., No. 3:21-cv-00055). The federal contractor vaccine mandate is not set for argument with the United States Supreme Court yet, but with multiple nationwide injunctions to date, contractors at least have clarity, for the time being, that the mandate is on hold pending further developments.
OSHA Healthcare Emergency Temporary Standard
In a major development for healthcare employers, OSHA quietly withdrew the vast majority of its Healthcare Emergency Temporary Standard (29 CFR 1910.502). Note, the healthcare ETS is not a vaccine mandate. The healthcare ETS contains workplace safety requirements for healthcare employers that largely went into effect in the Summer of 2021. As of December 27, 2021, OSHA withdrew all non-recordkeeping requirements of the Healthcare ETS, and covered healthcare employers no longer have to comply with the non-recordkeeping requirements of the Healthcare ETS moving forward. OSHA indicated that it intends to pursue a permanent standard at some point in the future, but for now, the Healthcare ETS has been largely withdrawn. State plan employers beware: when some state safety regulators adopted the Healthcare ETS, they also adopted “fallback” provisions, whereby a revocation of the OSHA ETS meant a reversion to pre-existing state plan rules. Whether such fallback provisions apply to you depends on the states where you operate.
New CDC Guidance on Quarantine
One development that has not flown under the radar is the CDC’s highly publicized revision to its guidance on how long individuals should quarantine following a COVID diagnosis or exposure for the general population and for healthcare workers.
Positive test requirements: “People with COVID-19 should isolate for 5 days and if they are asymptomatic or their symptoms are resolving (without fever for 24 hours), follow that by 5 days of wearing a mask when around others to minimize the risk of infecting people they encounter.”
Exposure requirements: “For 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. Alternatively, 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. Individuals who have received their booster shot do not need to quarantine following an exposure, but should wear a mask for 10 days after the exposure.”
Positive test requirements: “Healthcare workers with COVID-19 who are asymptomatic can return to work after 7 days with a negative test, and that isolation time can be cut further if there are staffing shortages.”
Exposure requirements: “Healthcare workers who have received all recommended COVID-19 vaccine doses, including a booster, do not need to quarantine at home following high-risk exposures.”
If you are in a state plan state, pay attention to your ability under any state safety regulations as to whether you can follow CDC guidance. Odds are that you will be able to, but there can be quirks. For example, in Virginia, employers follow CDC’s Isolation Guidance for return to work decisions when an employee has been diagnosed with COVID, but state workplace safety rules defer to the Virginia Department of Health on determining when an employee who’s had a close contact can return.
The COVID legal developments continue apace, but appear to be heading in the direction of increasing clarity for employers in the coming weeks on their obligations under the various mandates and standards. Stay tuned.