Viewpoint: Clash Between CDC and OSHA ETS?

By Jonathan A. Segal November 22, 2021
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Viewpoint: Clash Between CDC and OSHA ETS?

​It is far from clear whether the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS) will become law. I suspect the issue will not be resolved until the U.S. Supreme Court rules on it.

In the meantime, employers are preparing, to varying degrees, to ensure compliance if the ETS survives. Further, some employers are looking at the ETS as establishing what may be seen as "best practices."

No doubt, in some areas the ETS includes principles that employers would be well-advised to follow. One example: the general process to follow if an employee claims that their vaccination card has been lost.

However, there is one particular provision in the ETS that is problematic. It is the provision that addresses when an employer may allow an employee to return to work following a positive COVID-19 test or diagnosis.

29 CFR 1910.510(h)(2) permits employers to bring back to the workplace an employee who tested positive for COVID-19 or received a COVID-19 diagnosis who: a) receives a negative nucleic acid amplification test (NAAT) result (e.g., from a polymerase chain reaction test, commonly known as a PCR test) after having received a positive rapid (antigen) test result; b) satisfies the Centers for Disease Control and Prevention's (CDC's) "Isolation Guidance" standards for returning to work; or c) obtains a return-to-work recommendation from a licensed health care provider (emphasis mine).

You will notice that there is an "or"—not an "and"—in the above provision. This means that under the ETS, an employer does not need to require that an employee satisfy the CDC's guidance for ending isolation before allowing an employee to return to work. Instead, a negative PCR test or a return-to-work note from a licensed health care provider will suffice. 

OSHA explains in the Federal Register why it has provided alternatives to complying with the CDC's guidance. The following examples involving an employee named Greg explain why I do not find the reason compelling.

Example 1

Greg has not been feeling well. He has a telemedicine visit with his doctor, who recommends a COVID‑19 screening. Greg follows his doctor's advice and tests positive for COVID‑19.

Greg reports his diagnosis to HR. He asks when he can come back to work, and HR sends him the options in the OSHA standard detailed above. HR is using them as a best practice (even though they are anything but) on this issue.

Two days later, Greg lets his doctor know that he "feels just fine." Not as knowledgeable as most doctors, Greg's doctor gives him a note to return to work, reasoning that the symptoms were mild and lasted only a few days. In reality, Greg could still be shedding the virus upon his return to work. 

Example 2

During a telemedicine appointment, Greg's doctor diagnoses him as having COVID‑19 based on Greg's serious symptoms. The doctor orders a COVID‑19 test, which Greg takes that day.

The results come back negative, and Greg's employer allows him to return to work based on the test. But Greg may still be in the virus's incubation period and could test positive at a later date. Again, Greg could still be shedding the virus upon his return to work.

In either scenario, Greg could infect a colleague who could become sick or die. The risk exists for vaccinated and unvaccinated colleagues alike, but the risk is much greater to the unvaccinated.

The risk of infection would have been much lower if Greg's employer had followed the CDC's guidance (one of the options in the ETS) on the timeline for returning to work, rather than the other options in the ETS. 

Here's a rundown of how to apply the CDC's guidance:

Scenario 1

I think or know I had COVID‑19, and I had symptoms.

You can safely be around others after:

  • 10 days since the symptoms first appeared.
  • And 24 hours with no fever without the use of fever-reducing medications.
  • And other symptoms of COVID‑19 are improving.*

*Loss of taste and smell may persist for weeks or months after recovery and need not delay the end of isolation.

Note that these recommendations do not apply to people with severe COVID‑19 or with weakened immune systems (such as immunocompromised individuals).

Scenario 2

I tested positive for COVID‑19 but had no symptoms.

  • If you continue to have no symptoms, you can safely be around others after 10 days have passed since you had a positive viral test for COVID‑19.
  • If you develop symptoms after testing positive, follow the guidance above for "I think or know I had COVID‑19, and I had symptoms."

Scenario 3

I was severely ill with COVID‑19 or I have a weakened immune system caused by a health condition or medication.

  • People who are severely ill with COVID‑19 might need to stay home longer than 10 days—up to 20 days after symptoms first appeared. People with weakened immune systems may require testing to determine when they can safely be around others. Talk to your health care provider for more information. Your health care provider will let you know if you can resume being around other people based on the results of your testing.

Now that you have read the CDC's guidance, let me hammer home the point: Where does the CDC say a doctor's note or a negative test is enough on their own to return to work? It does not, and I wish OSHA had not.

Regardless of whether the OSHA ETS survives, employers are well-advised to rely on the CDC's guidance and not the alternatives raised by OSHA. We are dealing with much more than mere compliance. We are dealing with business continuity. We also may be dealing with life and death. 

On these issues, we don't need to wait for the Supreme Court's final word.

Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law. This blog is not legal or medical advice and should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

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