COVID-19’s impact on business and everyday life is significant. Partridge Snow & Hahn has assembled a team of attorneys with diverse practice areas who regularly advise companies on how to handle these impacts from both a legal and business perspective.
In addition, the RIDOH has once again revised its Isolation and Quarantine requirements, which are incorporated into the Executive Order. The only change is to reduce the time immunocompromised COVID-positive individuals must isolate. Under the new Guidance, these individuals must isolate 10 days (down from 20 days) since the positive test (if asymptomatic) or symptoms first appeared (if symptoms have improved, they have not had a fever in 24 hours and have consulted with their health care provider).
The Guidance references the CDC’s definition of immunocompromised, which it says includes the following:
The revisions appear to make two significant changes for both symptomatic and asymptomatic persons recovering from COVID. While non-immunocompromised individuals can still stop full isolation after five days (subject to the same standard regarding symptom improvement if applicable), under the new guidance such individuals are prohibited on days 5-10 of the recovery from traveling on public transportation or airplanes, visiting immunocompromised people and visiting places where the employee is unable to wear a mask, such as a restaurant. The prior January 7, 2022 guidance did not contain that outright prohibition and only asked individuals to “avoid” those situations. While businesses are not required to ensure employees comply with the order, employers now cannot require employees to travel for work on day 5-10 of the recovery period and should allow employees to eat in a socially distanced setting. In addition, employers should be prepared for further staffing disruptions given that employees would no longer be allowed to go to work via bus, train or ride share. The guidance does not provide an exception to the restriction even if a negative test is procured in the 5-10 day period.
Finally, the new guidance requires individuals wear a “high-quality mask” during the 5-10 day recovery period, which appears from the link in the guidance to mean a surgical or KN95 level (or above) mask.
In the case of close contact with someone with COVID-19, any adult who has not completed the recommended vaccine doses (including a booster after 6 months for primary Moderna and Pfizer vaccinations and 2 months for Johnson and Johnson) and also has not tested positive for COVID in the last 90 days through a lab based PCR or antigen test (not a home based test) must quarantine for 5 days (with additional precautions on days 5-10). Fully vaccinated and boosted individuals, as well as those who have recently recovered from a COVID-19 infection, must follow the precautions for 10 days after close contact but can work and do not have to quarantine. The precautions include a prohibition on travel by plane or public transportation and visiting immunocompromised individuals. In addition, the precautions require the individual wear a high quality mask.
Under the new guidance, plans and self-insured employers must cover up to 8 over-the-counter tests per person per 30 day period obtained for diagnosis/treatment after January 15, 2022. Click here to view updated guidance.
In addition, the Biden administration has also announced that starting on January 19, 2022, each household can directly order (free of cost) four self-tests from the government at: https://www.covidtests.gov/. Click here to view FAQ sheet.
The Supreme Court greenlighted the health care worker mandate, issuing a stay of the temporary injunction which previously stopped the rule. That mandate requires health care workers working at institutions that receive Medicare and Medicaid funding get vaccinated absent a religious or disability accommodation.
Several emergency appeals have been filed with the U.S. Supreme Court.
All employers, including but not limited to offices and manufacturers, must require masking indoors of all individuals unless proof of vaccination is provided by an individual. Proof of vaccination includes showing a vaccination card, printed copy or photo of vaccination card, digital or printed copy of vaccination record through the department of health and soon-to be released app or SMART Health Cards issued outside of Rhode Island.
Retail and services operations, recreational establishments, bars, restaurants, historical establishments, cultural establishments, venues of assembly and religious organizations (“public places”) must require masking indoors regardless of vaccination if the capacity of the operation is 250 people or more. Public places with a capacity of less than 250 people may provide exceptions to the masking mandate for people who provide proof of vaccination. A seated establishment/venue calculates the 250 capacity threshold by counting seats. An establishment that is not seated may estimate capacity by assuming one person per 60 square feet (so an establishment with 15,000 square feet is presumed to have a 250 person capacity).
Catered events have similar rules, with the distinction that the vaccination exception to the mask requirement applies if there is less than 250 at the event (verses an estimated capacity).
There are various situation exceptions to the mask requirement, such as eating and drinking and working alone in an office or job site where the worker is not expected to be approached by others.
The Rhode Island Department of Health (“RIDOH”) is authorized to make rules, regulations and enforce the order. The RIDOH published an FAQ on December 17, 2021 which states that establishments will need to post signage at entrances regarding their policy. View FAQ sheet. Model posters can be found at https://covid.ri.gov/public/workplaces.
Additional states are expected to pass similar vaccine mandate restrictions that will apply to private employers.
All individuals (even visitors) at a Covered Worksite must be required to wear masks if unvaccinated or if vaccinated and in a high area of transmission with a narrow exception when working in an office and for medical/religious accommodations. There is a general requirement that the worksites follow CDC requirements on masking and distancing and track the transmission rate on a weekly basis. Contractors/subcontractors must designate a person who is responsible for compliance.
(1) Fully vaccinated people who were in close contact with someone with COVID (within 6 feet for 15 minutes within a 24 hour period or if the RIDOH contacts the person to inform them they were in close contact) must wear a mask in public indoor settings until either (a) they receive a negative test taken 3-5 days after the exposure; or (b) for 14 days if no test is done.
(2) Those who are not fully vaccinated and are in close contact with someone with COVID (as defined in (1)) must: (a) quarantine for 10 days or 7 days if a negative test is obtained 5-7 days after the last exposure unless an exemption applies and (b) must get tested immediately after being notified of being a close contact and, if negative, get tested again 5-7 days after last exposure or immediately if symptoms develop during quarantine. Exemptions include certain exposures in school settings, certain health care works where there is a staffing shortage and individuals who have recently recovered from COVID.
Executive Order 21-94 expires October 1, 2021 and still provides for quarantine for both vaccinated and unvaccinated individuals with COVID and provides for a 14 day quarantine period for unvaccinated persons with close contact exposure living in a congregate setting.
One group are “health care facilities”, which takes the same definition as 23-17-2(8): http://webserver.rilin.state.ri.us/Statutes/TITLE23/23-17/23-17-2.HTM. This includes facilities such as hospitals, nursing homes, home care providers, surgical centers and more but excludes, amongst other things, practitioner’s offices, such as dentist offices or a group of physicians. For true “health care facilities”, there is the requirement that the facility (a) deny entrance of any employee that is a “health care provider” (defined below) by October 1, 2021 if the worker is not vaccinated; (b) implement procedures in the next 7 days to ensure workers compliance with the rules, including ensuring those who are not vaccinated get tested twice a week until October 1st (or longer if a medical exemption applies); and (c) have an adequate supply of procedure or higher grade masks. Offices that do not fit within the definition of a health care facility essentially do not have to do anything but may be impacted indirectly by the individual mandate.
The individual mandate extends to both unvaccinated:
(a) “health care workers”, meaning anyone who is employed by or works at a health care facility and has direct contact with patients and health care providers, regardless of whether they are directly involved in patient care (so it also includes clerical/housekeeping/security/maintenance personnel); and
(b) “health care providers” meaning anyone – including those who do not work at a health care facility – directly involved in patient care or potentially exposed to infectious agents that can be transmitted from person to person and who either is licensed to or otherwise lawfully provides health care services (there is no definition of health care services). It is important to note: (a) licensing does not matter and (b) in the non-health care facility context, if someone is licensed to provide health care services but does not actually provide health care services, the mandate does not apply.
Both groups of individual unvaccinated workers are required to (a) be vaccinated by October 1, 2021 (absent a medical exception), meaning all doses have been received of one of the authorized vaccines by the FDA, WHO or DOH (so if someone got the J&J by October 1st, they are compliant, there is no requirement any immunity is obtained before the 1st); and (b) if the vaccine was obtained out of state, email a form showing vaccination status. Oddly, there is no deadline for (b)(the DOH already has everyone’s vaccine records who got the vaccine in the state, which is why the mandate only applies to out-of-state vaccines). Unvaccinated health care workers also have the mandate to do the twice a week testing and unvaccinated health care providers have the requirement to wear a procedure or higher grade mask.
Someone is medically exempt from the vaccine if a physician, physician assistant or advanced practice registered nurse signs a “medical exemption” stating the provider is exempt from the COVID-19 vaccine because of a medical reason in accordance with the Advisory Committee on Immunization Practices (ACIP) guidelines. Also oddly, once the person gets the exemption that does not work for the health care facility, it appears they just keep it, as there is no requirement it be emailed or provided to the DOH. There is no religious exemption or exemption for individuals who have recently recovered from COVID.
Penalties are discretionary and are not automatic. So the person’s license is not automatically suspended and a fine does not automatically issue unless the DOH decides to take action. However, the DOH has the authority to take action against the person’s license (if applicable) and to impose penalties under 23-1-25. http://webserver.rilin.state.ri.us/Statutes/TITLE23/23-1/23-1-25.HTM. This statute allows the DOH to impose up to a $100 fine and/or imprisonment of not more than 30 days for violating the Rule without further notice. The DOH could also issue a compliance order to a specific individual, which if then is still not complied with, could result for each day of the violation a $300 fine and/or 90 days imprisonment.
As always, the CDC guidance has absolutely no legal effect. On some occasions, state officials have been influenced by the guidance in passing their own orders or recommendations, although on many occasions, local officials make their own, differing mandates and recommendations. Rhode Island and Massachusetts have yet to update their recommendations for vaccinated individuals.
St. Louis County’s new mask mandate (applying to both vaccinated and unvaccinated individuals indoors) also begins today and LA County, California issued a mask order at the end of last week with similar provisions.
The order requiring quarantine for those with COVID and for unvaccinated individuals with close contact with those with COVID still remains.
The remaining requirements include:
(a) Businesses must hang signs at entrances reminding unvaccinated people to wear masks.
(b) Employers must have masks available to employees.
(c) Masks must be worn in schools, health care settings, correctional facilities, homeless shelters, and public transportation.
(d) Unvaccinated persons must wear masks when within 3 feet of others. If an unvaccinated employee refuses to wear a mask, then the employer cannot allow them to work, but there is no requirement the employer verify vaccination (we would advise clients just to have a policy regarding the same).
(e) Businesses must have signs at entrances containing the symptoms and advising those who have the symptoms, who have COVID or have COVID exposure (and are not vaccinated) cannot enter.
(f) Businesses must exclude people with visible signs of COVID (or who have informed the employer they have symptoms of COVID), but there is no required screening or monitoring other than the aforementioned poster.
(g) Businesses must hang all additional posters that are applicable found on https://health.ri.gov/ or self-created signs with the same information.
(h) Businesses must “cooperate” with the DOH if contacted in connection with COVID exposures/cases.
Executive Order 21-58 makes a small change to clarify workers who are unvaccinated in private work spaces do not need to wear a mask if they are three feet from others even if they could be approached by someone at closer than 3 feet.
(a) April 30 (this Friday): face coverings order will be eliminated outdoors in public places, except for situations where it is not possible to maintain social distance and when required by business-specific guidelines. So far, the mask order will continue indoors.
(b) May 10: Large venues such as sports arenas can increase capacity to 25%, amusement parks can open at 50% capacity, road races will be allowed.
(c) May 29: Public gathering limits will increase, street festivals can be held at 50% capacity, bars can reopen with seated service only, restaurants may be allowed to eliminate food service requirement and increase maximum table size to 10.
(d) Aug. 1: All capacity limits will be at 100% and business restrictions will be eliminated. There is a caveat on the Massachusetts website that this may change depending on the vaccine distribution rate.
Unsurprisingly, the following executive orders were also extended:
(a) Executive Order 21-26 (quarantine/self-isolation requirements, which already had vaccine exceptions);
(b) Executive Order 21-29: (re: capacity limits in retail spaces/dining limits); and
(c) Executive Order 21-34: (the order with the gradual increase in capacity to venues of assembly – the next one will take effect May 15th, 2021 and allow a 50% capacity with up to 500 people indoors and 1,000 people outdoors).
Finally, separate from this order, the Rhode Island Department of Health has published updated guidance for Funeral Homes. Per the Guidance, calling hours and wakes may have up to 15 people indoors at one time; funerals and memorial services at funeral homes may have up to 30 people indoors at one time; and no more than 50 people can attend an outdoor gravesite service.
The employer training requirement still remains. It is worth noting the training – as with last step – must include what symptoms are considered “severe” enough to seek medical attention and what underlying conditions make an employee more susceptible to contracting and suffering a severe case of the virus.