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EMPLOYMENT LAW UPDATE

Supreme Court to hear challenges to OSHA & CMS vaccination mandates this week

By Mike O’Brien

On Dec. 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of OSHA’s vaccine mandate for employers with 100 or more employees in a split 2-1 decision. Wasting no time, OSHA published a compliance update to provide new deadlines. Covered employers have through Jan. 10, 2022, to adopt and publish a vaccination policy, to ascertain and record employee vaccination status, and to implement a masking requirement for all unvaccinated employees. Employers have through Feb. 9, 2022, to begin collection of negative weekly COVID tests from unvaccinated employees. You’ll find that compliance update, and compliance resources, on OSHA’s website.

Opponents of the vaccination mandate filed immediate challenges with the United States Supreme Court. On Dec. 22, 2021, the Supreme Court issued an order that it would hear oral arguments on the OSHA (100+ employee rule) and CMS (healthcare worker rule) vaccination mandates on this Friday, Jan. 7, 2022 (the federal contractor mandate is still subject to a nationwide stay and will not be addressed by the Supreme Court on Jan. 7). Pending a decision from the Supreme Court, lower court rulings will remain in place allowing the OSHA and CMS mandates to move forward. We do not know if the Supreme Court will make a ruling on Jan. 7—it has only said that it will hear an argument on that date.

CDC shortens recommended COVID-19 isolation & quarantine periods

On Dec. 27, 2021, the CDC updated and shortened its COVID-19 isolation and quarantine periods for people with COVID and for those exposed to COVID. For people with COVID, the CDC shortened its recommended isolation period from 10 days to five days, if asymptomatic at that time, followed by five days of wearing a mask when around others. However, if symptoms persist, then the isolation period should expand for longer than five days until symptoms subside. The CDC explained that its “change is motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the one to two days prior to the onset of symptoms and the two to three days after. Therefore, people who test positive should isolate for five days and, if asymptomatic at that time, they may leave isolation if they can continue to mask for five days to minimize the risk of infecting others.”
For those exposed to COVID, the CDC also updated its recommended quarantine periods. For those who are unvaccinated or are more than six months out from vaccination (i.e., those who have not yet had a booster shot), the CDC now recommends a five-day quarantine period followed by five-days of masking after a COVID 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.” Read the full updated guidance here.

EEOC updates COVID-19 guidance to clarify when COVID-19 may be aa ADA-covered disability

On Dec. 14, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance to clarify when COVID-19 may be a disability that is protected under the Americans with Disabilities Act (ADA). You’ll find the new information in section “N” of the EEOC’s COVID-19 guidance, entitled, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

The EEOC has clarified that an employee who suffers only mild COVID symptoms, or who is asymptomatic, does not have a disability under the ADA—and is, therefore, not entitled to an ADA accommodation. On the other hand, employees with the following COVID experiences may have an ADA-covered disability and may be entitled to a reasonable accommodation:

  • Individuals who experience ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating;
  • Individuals who receive supplemental oxygen for breathing difficulties and have shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months;
  • Individuals who experience heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months; and
  • Individuals with “long COVID” who experience COVID-19 related symptoms “for many months, even if intermittently.

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