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Employment LawLegal Insights

Employment Law Update- 12/29/2021

By January 3, 2022No Comments

CONTENTS

  • Supreme Court Will Hear Challenges to OSHA & CMS Vaccination Mandate on January 7
  • CDC Shortens Recommended COVID Isolation & Quarantine Periods
  • EEOC Updates COVID Guidance to Clarify When COVID May be ADA-Covered Disability
  • Jones Waldo Adds New Authors to its Employment Law Updates

Supreme Court TO Hear Challenges to OSHA & CMS Vaccination MandateS on January 7:  On December 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 January 10, 2022, to adopt and publish a vaccination policy, ascertain and record employee vaccination status, and implement a masking requirement for all unvaccinated employees. Employers have through February 9, 2022, to commence 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 December 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 January 7, 2022 (the federal contractor mandate is still subject to a nationwide stay and will not be addressed by the Supreme Court on January 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 January 7—it has only said that it will hear an argument on that date. We will publish an emergency alert soon after the Supreme Court issues a ruling. Stay tuned!

Note, as explained in our prior update, if the Supreme Court allows the OSHA mandate to move forward, employers may have additional time to comply for their Utah-based employees. Utah has a “State Plan” for workplace safety and must adopt its own safety standards that are “at least as effective” as OSHA’s standards. However, Utah has not adopted OSHA’s vaccination mandate. You can read more about Utah’s beef with OSHA in reporting from the Salt Lake Tribune and from national SHRM. If the OSHA vaccine mandate survives Supreme Court review, and Utah fails to adopt a vaccination requirement that is at least as effective as the OSHA rule, we could have a showdown here in Utah. The likely outcome of such a dispute is the revocation of Utah’s State Plan status, with OSHA taking the reins once more to regulate workplace safety here. Also, recall that the Utah Legislature has enacted legislation (SB 2004) that places limits on employer vaccination and recordkeeping requirements (see our November 16 update for additional details).  If OSHA’s rule is upheld by the U.S. Supreme Court, it likely will preempt most of that Utah law.
CDC Shortens Recommended COVID Isolation & Quarantine Periods:  On December 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 5 days, if asymptomatic at that time, followed by 5 days of wearing a mask when around others. However, if symptoms persist, then the isolation period should expand for longer than 5 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 1-2 days prior to the onset of symptoms and the 2-3 days after. Therefore, people who test positive should isolate for 5 days and, if asymptomatic at that time, they may leave isolation if they can continue to mask for 5 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 5-day quarantine period followed by 5-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 Guidance to Clarify When COVID May Be ADA-Covered DisabilityOn December 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;
  • An individual who experiences 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.”

Jones Waldo Adds New Authors to its Employment Law Updates: Over the past year, these employment law updates have been authored by the following members of the Jones Waldo Labor & Employment Group: Michael Patrick O’Brien, Mark Tolman, Marci Rechtenbach, and Paul Smith. We are pleased to announce that in 2022 our team of authors will expand to include Mike Judd and Elena Vetter, who are also valued members of the Jones Waldo Labor & Employment Group. Welcome, Mike and Elena!