To get a vaccine, perchance to quarantine - ay, there's the rub

Stephen Scott, BridgeTower Media Newswires

To quarantine, or not to quarantine, that is the question: Whether ’tis nobler in the mind to isolate the science and data studies of outrageous fortune, or to take arms against a sea of restrictions. And by adhering, end them.

Employers over the past year have had to navigate restrictions, guidance and legal pitfalls that are just as confusing as Shakespeare. Fortunately for employers, there is finally an answer to a big question: Do I have to quarantine if I receive a COVID-19 vaccine? Stopping short of completely eliminating quarantine requirements for people who have been fully vaccinated for COVID-19, the Centers for Disease Control and Prevention (CDC) just substantially relaxed its recommended isolation requirements for people who have completed the vaccine regimen. While certain restrictions remain, and the new guidance is almost certain to change in the coming months (because, of course, it will), it provides employers yet additional motivation to encourage their workers to get inoculated.

What is new that I need to know?

There is a simple three-prong test for employers to consider when assessing whether someone needs to quarantine per the CDC. Under the new guidance, an individual with exposure to someone with suspected or confirmed COVID-19 is not required to quarantine if he or she meets all of the following requirements:

• has been fully vaccinated – i.e., at least two weeks have passed since receipt of the second dose in a two-dose series or of one dose of a single-dose vaccine;

• is within three months following receipt of the last dose in the series; and

• has remained asymptomatic since the current COVID-19 exposure.

If an employee fails any of these three prongs, then employers should follow current post-exposure quarantine guidance after exposure to someone with suspected or confirmed COVID-19. In most cases, this would require a quarantine of 14 days.

The new guidance is consistent with CDC’s previous commentary regarding post-exposure quarantine by someone who has recently recovered from a case of COVID-19. They too are not required to quarantine following another exposure during the three months after their recovery.

Ultimately, the decision tree on whether someone who may have been exposed to COVID-19 should quarantine should start with a simple question: Are you experiencing any COVID-19 symptoms? Because if an employee is experiencing any COVID-19 symptoms, even if recently fully vaccinated or recovered from COVID-19, he or she needs to quarantine.

What remains the same?

This guidance does not change – and should not be confused with – the CDC’s prior statements regarding those who have been fully vaccinated. These workers should continue to practice other basic precautions such as wearing masks, social distancing, avoiding crowds, and handwashing, and employers should still hold all workers to these standards.

To this end, the CDC’s guidance still tracks with the federal Occupational Safety and Health Administration’s (OSHA’s) recent guidance recommending employers not relax preventive measures for employees who have been vaccinated; now is not the time to rest on our laurels. This is because the extent to which reception of a vaccination may mitigate or eliminate transmission of the virus remains unclear.

Thanks, Stephen, for the advice; what should we do?

This guidance raises issues for employers to consider. First, update policies and practices concerning quarantine as they pertain to people who have been vaccinated. Note that the relaxed treatment of workers who have been fully vaccinated applies only during a relatively narrow three-month window after they have received their final dose. This will require employers to develop ways to track employee vaccination status and applicable quarantine requirements. Of course, it also highlights the relevance of knowing which employees have been vaccinated, regardless of whether an employer requires, encourages or takes no position on vaccines in general.

Although asking an employee whether he or she has been vaccinated is not considered to be a medical examination under the Americans with Disabilities Act, an employee’s elaboration on his or her reasons for not being vaccinated could quickly become so. In any event, always be mindful to protect the confidentiality of such information.

Finally, the idea of loosening quarantine protocols for a segment of one’s workforce may sound like an attractive option for obvious reasons (provided it’s done in a safe manner in line with the CDC’s guidance), and therefore may cause one to consider offering incentives to workers to induce them to get inoculated. As I’ve discussed previously in columns, there are legal risks associated with common methods of incentivizing COVID-19 vaccinations. Please reach out to counsel to discuss the risks associated with common COVID-19 vaccine incentive programs.

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Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.