That’s a question for your legal team. But the short answer (which is explained more carefully in today’s best read from Fisher Phillips) is YES. The ETS was sent back to the 6th circuit. The proposed rules (eliminating these falling under ETS guidelines) have been published in the Federal Register and would become effective the first week in May.
But more importantly, you need to know who is vaccinated in order to know who does and does not need to be excluded for close contact with COVID positive people. The list of major cities requiring testing for unvaccinated employees appears to be growing almost by the day. As mentioned above, St. Paul joined that list in the last few days. So although there is a stay on the ETS and the ETS itself likely will dissolve, the basic issues of needing to know who is vaccinated and a place to record testing where it is required didn’t go away.
While return to work testing isn’t required, the latest CDC guidance (which is downright confusing) says that if someone wants to test, and is able to find a test, and then tests positive again “toward the end” of their 5-day isolation period, they should stay out for a full 10 days from their symptom onset (or positive test date if asymptomatic). To reflect this change, we’ve updated our COVID Exclusion Chart to reflect that. See our blog post on the updates here. Because the CDC guidance is vague on timing, we’ve gone ahead and said that if someone tests positive again on Days 3-5, they should stay out until Day 10.
Our hope is that this will also help with the high number of people we’re seeing who are still too sick to come to work on Day 5.
Unfortunately, the answer is yes. Many of our clients are seeing new patterns of employees who are unvaccinated being excluded repeatedly. And if they become sick themselves and they don’t get tested and confirmed positive, they don’t get the 90 day pass on future exclusions for close contact. Some clients are considering requiring testing for unvaccinated employees who report illness. Obviously, that’s one that will need legal review.
Yes and no. We’re still hearing about sick and exposed employees having difficulty finding rapid tests, long lines for testing in some places and price gouging. But we’re also getting more calls, emails and samples from suppliers who have or expect larger quantities of kits to become available. The Supreme Court’s stay on the ETS may open up some supply, but even just earlier today, we heard about several companies who either pushed back office openings or closed offices because they didn’t have testing availability to meet the demands of their testing plans.
Yes. The Wall Street Journal referred to last week as “the week America called out sick.” This week really is nearly the same. We’re seeing massive daily reports of illness. We’re also seeing that the majority of your employees aren’t really better in five days. Anecdotally, we’re seeing fewer asymptomatic employees, as well - though this may be in part due to testing availability. While Omicron may not be causing the levels of critical illness seen earlier, especially among those who are vaccinated, it’s still causing extended periods of fever, coughing and congestion, very sore throats, nausea, vomiting and diarrhea.
