Confusion and potential dizziness are among the side effects faced by employers making efforts to comply with the array of new rules and regulations implemented in response to COVID-19. Since the inception of the pandemic, employers have struggled to stay up to date on the ever-changing laws and guidelines, including those specific to quarantine requirements. Can my employee come to work if they have been exposed to COVID-19? How long must the employee quarantine? What if the exposure is only expected, not confirmed? How does a positive or negative test result impact the quarantine requirement?
The answers to these questions depend on a myriad of factors, but recently issued guidance from the Centers for Disease Control and Prevention (“CDC”) and the New Jersey Department of Health (“NJ DOH”) offer additional clarification for at least one increasingly common question among employers – should a vaccinated employee still quarantine?
It is the responsibility of local public health authorities to determine and establish the quarantine options for their jurisdictions. Last week, the NJ DOH adopted recently issued CDC guidance, and released updated quarantine timeframes for vaccinated individuals. Pursuant to the new timeframes, individuals who are exposed to COVID-19 do not have to quarantine if:
- The individual is fully vaccinated (meaning more than 2 weeks have passed since receipt of the second dose in a 2-dose vaccine series, or more than 2 weeks have passed since receipt of one dose in a single-dose vaccine); AND
- The individual received their last dose within the last 3 months; AND
- The individual has remained asymptomatic since the COVID-19 exposure.
If an employee fails to meet any one of the above criteria, employers should continue to follow current quarantine timeframes to ensure they are providing a safe work environment.
How Will I Know If, And When, An Employee Received The Vaccination? Can I Request Proof Of Vaccination?
Yes. According to the Equal Employment Opportunity Commission (“EEOC”), employers may ask or require an employee to show proof that they received a COVID-19 vaccination. However, employers should refrain from asking additional questions beyond proof of receipt. Asking additional questions bears the risk of triggering the Americans with Disabilities Act (“ADA”), which generally prohibits employers from eliciting information about a disability. For example, the EEOC expressly warns employers against asking why an employee did not receive a vaccination since this question is likely to elicit information about a disability.
To limit the risk of violating the ADA or applicable state laws, it is best practice for employers requesting proof of a vaccine to warn their employees in advance not to provide any additional medical information beyond what is required to show proof of vaccination.
What If The Employee Does Not Meet All Three Requirements? How Long Must The Employee Quarantine?
Unfortunately, the answer to this question varies depending on the circumstances. The NJ DOH continues to maintain that a 14-day quarantine is preferred. However, the NJ DOH recognizes shortened timeframes are acceptable if either (a) a 14-day quarantine would pose a significant economic or other hardship on the individual, OR (b) if the COVID-19 transmission risk for the region is moderate or low as indicated on the COVID-19 Activity Level Index Report, available at: https://www.nj.gov/health/cd/statistics/covid/.
In either of these two instances, the NJ DOH recognizes the following shortened quarantine timeframes as acceptable:
- A 10-day quarantine with no symptoms during daily monitoring; OR
- A 7-day quarantine with a negative test result collected between days 5-7 of the quarantine period and no symptoms during daily monitoring.
Despite the NJ DOH’s expressed acceptance of shortened timeframes, it continues to recommend a 14-day quarantine and instructs working individuals to follow their employer’s policies. Employers should be aware that there are potential risks in adopting shortened quarantine timeframes and policies allowing shortened quarantines may not be considered reasonable for all workplaces.
The Occupational Safety and Health Act (“OSH Act”) places an affirmative obligation on employers to provide a safe and healthy work environment for their employees.
The nature of the work environment and employees’ contact with each other at the workplace lends to varying exposure risks, and thus, varying determinations on what constitutes a proper quarantine timeframe to ensure a safe and healthy work environment.
For work environments where the risk of exposure is high, employers may risk violating the OSH Act for implementing shortened quarantine timeframes. Reliance on the NJ DOH’s recommendations for minimum quarantine timeframes will not absolve an employer of liability for failing to provide a safe work environment. Before deciding to implement a shortened quarantine timeframe, employers should consult with legal counsel to determine the associated benefits and risks.
The recommended quarantine timeframes frequently change as new information develops surrounding the vaccine, and the virus. Employers should continue to monitor all federal, state and local laws and guidelines for the most recent information.