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The Executive Briefing - Friday, January 14th

What the stayed ETS means for employers 🚦

COVID Recap:

  • Dr. Fauci has said that nearly everyone will catch COVID eventually at our current rates, but experts explain why that doesn’t mean you should deliberately catch it now - it can be pretty bad, you could get long COVID even if it’s mild, you might spread it to young kids, and you’ll stress our healthcare systems. (CNN)
  • Don’t use LuSys COVID tests - they’re not authorized by the FDA and have a high likelihood of false results! (Newsweek)
  • Insurers say that Saturday is too soon to meet the administration’s requirement that at-home rapid tests are covered. (NY Times)
  • The Twin Cities are requiring indoor vaccine or testing mandates, joining Boston, NYC, Chicago, New Orleans, Philadelphia, San Francisco, Seattle and DC. (CNN)
  • Scientists in Poland have found a gene that more than doubles your risk of getting severe COVID. (Reuters)
  • 24 states have hospitals pushed nearly to capacity during this Omicron surge. (NY Times)
  • There may be compounds found in cannabis that prevent COVID from infecting human cells. (CBS)
  • Quietly, over some objections, a national vaccine card utilizing QR codes appears to be emerging - already in use in 13 states and by major vaccinating retailers. (NBC)
  • Philadelphia will be a test market (one of 42 future hubs) for USPS delivery of federally purchased free at-home test kits.  (Philadelphia Inquirer)
  • The effort to vaccinate young kids has stalled, with just 18% fully vaxxed, even as pediatric hospitalizations are rising. (KHN)
  • Citigroup reached 99% compliance on their employee vaccine mandate. Staff who aren’t vaccinated will be placed on unpaid leave and fired unless they’re granted an exemption. (Reuters)

Today’s Health News:

  • Multiple Sclerosis is likely caused by a virus according to a new study of 10 million military personnel and has a direct link to Epstein Barr Disease. (NY Times)
  • The next application for mRNA vaccines may be in preventing skin cancer, based on research being done on mice. (Science Alert)
  • Don’t snuggle with your bearded dragon. The CDC is warning of a salmonella outbreak among these household pets.  (Huffington Post)
  • There’s a massive national blood crisis forcing doctors to make tough decisions on who gets blood transfusions. Consider masking up and donating if you can! (NPR)


Best Questions:

Do we still need vaccination and testing tracking with the stay placed on the ETS?

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.

If someone tests positive toward the end of their 5 day exclusion, can they return to work?

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.

Does an unvaccinated employee need to be excluded each time they have close contact?

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.

Is testing availability improving?

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.

Is everyone else still experiencing as many sick calls as we are, including employees sick longer than five days?

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.  

Best read:  

Fisher Phillips - Supreme Court Strikes Down OSHA's Vaccine ETS: An Employer’s 6-Step Priority List



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Disclaimer: This post is meant for general information and educational purposes only and does not constitute, and is not intended as, any form of medical, legal or regulatory advice or a recommendation or suggestion regarding the same.  No recipient of this information should act or refrain from acting on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.