For two solid years, the COVID pandemic has dominated the news and agendas of employers around the globe. Just in time to kick off 2022, the most contagious wave of the COVID pandemic – the Omicron variant – has crashed fear down upon employers scrambling to figure out how to keep their businesses alive and employees healthy. Even if Omicron plays out to be more mild than other Coronavirus variants, will businesses be able to survive it?

Here’s What We Do Know:

Employers only have until January 10 to work toward the Emergency Temporary Standard (ETS) mandate-or-test emergency vaccine rule.

At the close of 2021, in one of the more shocking developments in a year full of surprises, a federal appeals court breathed new life into the Biden administration’s mandate-or-test emergency vaccine rule. Just before Christmas, the ruling – which many hoped would keep the Emergency Temporary Standard (ETS) on ice pending resolution of the many legal challenges against it – was overturned, keeping the rule in place.

The ETS is in effect now in Federal OSHA jurisdictions. The ETS initially required compliance with all aspects other than the testing requirements by December 6, and with all requirements by January 4, 2022. While those deadlines are no longer feasible, OSHA has posted an aggressive updated compliance deadline plan.

OSHA can issue citations immediately but has said it will exercise its “enforcement discretion with respect to the compliance dates of the ETS” to allow employers time to get up to speed.

Specifically, it states, “OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

If this rule applies to your business, you must immediately demonstrate reasonably good faith efforts to comply between now and January 10.

In response to the ongoing Omicron wave of COVID-19 cases, the Centers for Disease Control and Prevention (CDC) just updated its guidance to reduce, in most instances, both the length of time an individual must isolate after contracting COVID-19, and the quarantine period for those exposed to the illness. Here is the recommended compliance plan for those companies affected:

Isolation Period for Infected Employee After Positive COVID-19 Test. If an employee tests positive for COVID-19, they should follow this course regardless of vaccination status:

  1. Stay home for five days.
  2. If they have no symptoms or their symptoms are resolving after five days, they can leave their house.
  3. They should continue to wear a mask around others for five additional days.
  4. If they have a fever, they should continue to stay home until the fever resolves.

Quarantine Period After Employee Is Exposed to Someone with COVID-19. For employees who are unvaccinated, haven’t received a booster, or received their second dose of Moderna/Pfizer more than six months ago or their single dose of Johnson & Johnson more than two months ago:

  1. Stay home for five days. After that, they should continue to wear a mask around others for five additional days.
  2. If they can’t quarantine, they must wear a mask for 10 days.
  3. They should get a COVID-19 test on day five, if possible.
  4. If they develop symptoms, they should get a test and stay home.

For employees who have received a booster after receiving a two-dose Moderna/Pfizer vaccine or a single-dose Johnson & Johnson vaccine, or received their second dose of Moderna/Pfizer less than six months ago or their single dose of Johnson & Johnson less than two months ago:

  1. Wear a mask around others for 10 days.
  2. They should get a COVID-19 test on day five, if possible.
  3. If they develop symptoms, they should get a test and stay home.

Educate Your Workforce.

  1. Change has been a constant throughout the COVID-19 pandemic. Employees are always concerned when policies change.
  2. If employees know that their coworkers may return to the worksite approximately five days after being diagnosed with COVID-19, they may be concerned.
  3. Alleviate this problem by educating your workers on any new company policy on isolation, including providing information on the new CDC guidance and why you are making changes.

Vaccination Boosters are Important; Encourage Them – And Consider a Mandate.

  1. As part of its press release announcing the new guidance and provisions, the CDC highlighted the importance of COVID-19 vaccination boosters.
  2. Although they are not currently required to be considered “fully vaccinated” under the ETS and other guidance, encourage your employees to receive them this winter as COVID-19 cases remain high.
  3. If you have already mandated the vaccine in the workplace, consider requiring employees to receive a booster dose as well.

Contact Tracing Is Still Crucial to Minimize Cases of COVID-19.

  1. As part of reducing the number of COVID-19 cases in the workplace, perform contact tracing when an employee tests positive for the virus following the 6-15-48 method. This includes asking the infected employee, and assessing the workplace, to determine who worked within six feet of the infected worker, for 15 minutes or more (cumulatively during any 24-hour period), during the time period of 48 hours before the infected person had symptoms or, if asymptomatic, the administration of the positive COVID-19 test. Implementing this process will prevent the illness from spreading in your workplace.

Develop a COVID-19 or Infectious Disease Policy and ETS Policy.

  1. If you haven’t already done so, implement a written COVID-19 or infectious disease policy to document your work rules on how to minimize cases in your workplace.
  2. The OSHA ETS also requires written policies, including a mandatory vaccination policy or testing and masking policy. Having written policies in place will not only keep you compliant with governing rules, but also allow you to communicate your policies effectively to your employees.

While not all employers are governed by the mandate-or-test emergency vaccine rule, many employers are suffering from worker shortages because of the rapid increase of infections, reported as exceeding one million in the past 48 hours alone. It would be wise for all employers, large and small, to keep current and follow the guidelines to help protect their workforce and their business.


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