Hunton Employment & Labor Perspectives

The Centers for Disease Control (“CDC”) announced major changes to its COVID-19 guidance on August 13, providing additional flexibility for employers seeking a return to normal operations after the pandemic.

Since the COVID-19 outbreak began in early 2020, the Occupational Safety and Health Administration (”OSHA”) has used CDC guidance to inform its enforcement of safety rules against employers.  Under the General Duty Clause of the OSH Act, OSHA can cite employers if they fail to provide workers with a safe and healthful workplace free from recognized hazards that are likely to cause serious injury or death.  OSHA has taken the position that failing to follow CDC guidance can serve as evidence of a General Duty Clause violation and result in legal penalties.

Now, with the CDC relaxing several aspects of its guidance, employers may feel more comfortable returning workers to office settings and interacting in person with less enforcement risk.

The CDC’s changes included:

• Removing the requirement for people to quarantine after exposure to a COVID-19 positive case, regardless of vaccination status;
• Reducing its emphasis on 6-feet of physical distancing to prevent spread of COVID-19;
• Reducing, in many cases, the isolation time frame after a positive COVID-19 test to 5 days, regardless of vaccination status; and
• Removed recommendations for screening testing for asymptomatic people without known COVID-19 exposure in most community settings.

Practically speaking, these changes mean that fewer people will need to isolate or quarantine because of COVID-19 exposures, and persons who test positive for COVID-19 will be able to return to work faster in most cases.

The CDC still recommends vaccination for COVID-19 and requires longer quarantine or isolation periods for certain types of COVID-19 cases or vulnerable persons.  It also recommends masking after COVID-19 exposures and as an effective way to prevent the spread of infection.  So even with relaxed guidance, employers must stay abreast of current CDC advice.

Obligations for employers in California remain largely unchanged despite the CDC’s updates. California’s Emergency Temporary Standards for COVID-19 remains in effect, and its requirements are based on California Department of Public Health guidance, not the CDC.

Employers in all states should continue to take steps to keep employees safe from COVID-19, including instructing sick employees not to report to work and responding with additional protective measures in the event of a work-related outbreak and/or elevated community spread.  Further, employers have an unchanged obligation to follow direction, if any, from applicable public health authorities.

OSHA has not updated its guidance since August 2021, but has communicated for many months that an update is coming soon.  Thus, a risk exists that the agency may try to enforce its outdated guidance through the general duty clause.  The more likely scenario is that the agency will hold employers to current CDC guidance and any additional precautions urged by public health authorities.  As such, as long as employers comply with revised CDC requirements, follow public health updates and respond with additional precautions in the event of a workplace outbreak, they should be able to satisfy their obligations under the general duty clause.