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Revised Michigan COVID-19 Health Recommendations Highlight Tensions Between State Requirements; CDC Protocols

On December 2, 2020, the Centers for Disease Control and Prevention (the “CDC”) amended its guidelines to shorten the quarantine time period in situations when an individual has been in close contact with someone who has tested positive or has symptoms of COVID-19. Data from a CDC study indicates that 99% of all infections will develop within 10 days of exposure. Therefore, while a 14-day quarantine period remains the standard, the new CDC guidelines provide the option of reducing the required 14-day quarantine period to:

  • “10 days without testing if no symptoms have been reported during daily monitoring; or

  • 7 days if a diagnostic specimen tests negative and if no symptoms were reported during daily monitoring.”

However, alongside these new recommendations, the CDC guidelines also reiterate that it remains the job of local public health authorities to determine and establish the quarantine options for their jurisdictions. Determining exactly which law and guidance controls, though, remains a complicated endeavor.

On December 4, the Michigan Department of Health and Human Services (“MDHHS”) weighed in on the CDC change. In its release, Updating Guidance on COVID-19 Quarantine Period Based on New CDC Findings, MDHHS chose to amend recommendations adopting only part of the revised CDC guidelines. Michigan approved shortening the 10-day period, but has not (yet) adopted shortening it to 7 days with a negative test.

The revised MDHHS guidelines state:

“While the standard 14-day quarantine period remains, it can be reduced to 10 days if the following two conditions exist:

  • The individual does not develop any symptoms or clinical evidence of COVID-19 infection during daily symptom monitoring for the 10 days after the last exposure.

  • Daily symptom monitoring continues through day 14 after the last exposure.

With consideration for existing and potential limitations on the availability of testing resources and concerns of increased turnaround time for lab results, MDHHS is currently reviewing options for further reduction of quarantine periods based on diagnostic testing results. MDHHS guidance may be updated at a later date based on that review.”

In short, while MDHHS may adopt the CDC’s 7 day testing option as a recommendation, it has not yet done so.Complicating the matter further, the updated MDHHS emergency order, issued on December 7 and which carries the force of law unlike MDHHS’ recommendations, makes no mention of mandatory quarantine periods.

It should also be noted that MDHHS and the CDC rules also interact with requirements set forth by regulatory rules, such as those set forth by the Michigan Occupational Safety and Health Administration (MIOSHA). Under the October 14MIOSHA rules:

[An]employer shall allow employees with a known or suspected case of COVID-19 to return to the workplace only after they are no longer infectious according to the latest guidelines from the CDC and they are released from any quarantine or isolation order by the local public health department.”

Viewed through this lens, the changed CDC rules do in fact affect the legally required quarantine periods to which employers must adhere. On December 8th, MIOSHA released updated guidelines confirming their position that CDC guidelines may be followed as they change. However, the most recent change is minor, and may very well be subject to further revisions in the near future.

In sum, the option of shortening the 14 day quarantine period to 10 is welcome news which most employers likely will adopt. However, both MDHHS and the CDC continue to state that the 14 period remains “standard”, and therefore, especially given the rapidly changing COVID-19 environment,  employers should evaluate their own circumstances before changing their protocols.     

© 2021 Foley & Lardner LLPNational Law Review, Volume X, Number 343
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About this Author

John Birmingham, Employment Attorney, Foley Law Firm
Partner

John F. Birmingham, Jr. is an employment lawyer, a member of Foley’s Management Committee, former chair of the firm’s Labor & Employment Practice and a partner in the Detroit office. Mr. Birmingham concentrates on class actions, non-competition and trade secrets matters, employment-related litigation, and labor law. He regularly counsels clients on a vast array of labor and employment issues and develops problem prevention and resolution strategies. In addition, he is a member of the Privacy, Security & Information Management and Immigration, Nationality &...

313.234.7127
Jeffery Kopp, Labor Attorney, Foley and Lardner Law Firm
Partner

Jeffrey S. Kopp is a partner and litigation attorney with Foley & Lardner LLP. He has represented and counseled clients in various labor and employment, FMLA, OFCCP and EEO compliance, unemployment, workers compensation leave, and non-compete and trade secret matters. Mr. Kopp is a member of the firm’s Labor & Employment Practice, the Automotive Industry Team and the Trade Secret/Non-Compete Task Force. Mr. Kopp also represents employers in matters involving federal and state occupational safety and health agencies, including matters involving employee fatalities...

313-234-7140
Kenneth A. Johnson Business Attorney Foley & Lardner Detroit, MI
Associate

Kenneth Johnson is a business law associate with Foley & Lardner LLP. He is a member of the firm’s Transactions Practice.

Previously, Ken served as a summer associate at Foley’s Detroit Office. Prior to joining Foley, Ken worked as a summer associate assisting with bond issuances and real estate matters for public schools. He was also a founding member of the University of Michigan Health System Finance Development Program, where he worked as a finance and strategy consultant prior to law school.

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