By Conn Maciel Carey’s COVID-19 Task Force
By now you have likely heard the big news that yesterday, May 13th, the CDC updated guidance related to masks and physical distancing for individuals who are fully vaccinated (i.e., two weeks after receiving a single-dose vaccine or after the second dose in a two-dose series). Specifically, in its updated guidance — “Interim Public Health Recommendations for Fully Vaccinated People” — the CDC now says fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances. As of now, there is no outside limit to one’s status as fully vaccinated.
In a public video released just before the CDC posted its updated written guidance, CDC Director Dr. Walensky shared that “based on data about vaccine effectiveness and the low risk of transmission to others, and universal access to vaccines today, the CDC is updating our guidance for fully vaccinated individuals. Anyone who is fully vaccinated can participate in indoor and outdoor activities—large or small—without wearing a mask or physical distancing.” Even in the case of “breakthrough” infections, Dr. Walensky acknowledged that there is likely low risk of transmission to others. Dr. Walensky cautioned that “over the past year, we saw how unpredictable this virus can be, so we may have to change these recommendations if things get worse.”
What Does This Mean For Workplaces?
The question everyone is asking is whether this updated guidance applies to employees and workplaces. The best answer we can give now is that the guidance does technically apply to workplaces, but there is a significant exception relative to workplaces built into the new guidance that swallows most of the relief it purports to provide, at least for now in many jurisdictions. Here’s our analysis about why this new guidance does apply to workplaces, but how geographically limited the relief is for the time being. Continue reading
By Conn Maciel Carey’s COVID-19 Task Force
Early in the pandemic, popular sentiment—and to a lesser extent, the scientific community—believed that surface transmission of COVID-19 was one of the primary vectors of transmission. Over time, however, epidemiologists gained a better understanding of how the virus was most typically transmitted. As a result, the CDC’s guidance evolved to a point where surface transmission was viewed as a less significant mode of transmission than person-to-person transmission.
Throughout all that, spring cleaning took on a new meaning in 2020, as people rushed to purchase all the disinfectant wipes and sprays they could find, wiping down groceries and mail, sanitizing their hands, and treating door handles like they were radioactive. Workplace sanitation similarly became an area of emphasis as employers distributed wipes, sprays and pump bottles throughout their facilities, hired additional janitorial staff and, in many cases, spent exorbitant sums on third-party vendors to clean and disinfect the workplace, even introducing aggressive surface cleaning techniques like fogging. And once the hygiene frenzy took hold in the workplace, there has been little reprieve for employers from regulatory bodies. State and local health departments, federal OSHA and State OSH Plans, and even some state legislatures, recommended or imposed strict sanitization protocols, including requirements to routinely wipe down shared surfaces with disinfectant, to close workplaces for deep cleaning even when days had passed since a COVID-positive individual had been in the area, and implement daily cleaning and disinfecting plans. The financial cost for employers associated with these requirements rose quickly. Like pre-shift temperature screens, some of these requirements have persisted even after the science has recognized their limited efficacy.
Earlier this week, more than a year after the COVID-19 pandemic began, the CDC has released new guidance clarifying that the risk of contracting COVID-19 from contaminated surfaces is, in fact, quite low. Continue reading
By Conn Maciel Carey’s COVID-19 Task Force
As we noted in a Client Alert last month, the CDC issued its new guidance for “Close Contacts” in a way that would make quarantine circumstances much more likely; i.e., CDC’s new definition of close contact makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, rather than just a single, continuous 15-minute interaction.
Creating even more challenges for maintaining adequate staffing, the CDC issued additional guidance in November limiting the flexibility to keep asymptomatic critical infrastructure workers at work after a close contact exposure:
Employers may consider allowing exposed and asymptomatic critical infrastructure workers to continue to work in select instances when it is necessary to preserve the function of critical infrastructure workplaces. This option should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.
Those two changes combined to make staffing a real challenge as we move firmly into the second big wave of COVID-19 cases.
Perhaps because of those challenges, today, the CDC issued new guidance that would reduce the duration of many quarantines from 14 days to 10 days and, in some cases to 7 days. Specifically, CDC identified the following options as acceptable alternatives to a 14-day quarantine:
- Quarantine can end after Day 10 without testing and if no symptoms have been reported during daily monitoring.
- If testing is available, then quarantine can end after Day 7 if a respiratory specimen tests negative and no symptoms were reported during daily monitoring. The specimen may be collected and tested within 48 hours before the time of planned quarantine discontinuation (e.g., in anticipation of testing delays), but quarantine cannot be discontinued earlier than after Day 7; i.e., testing should be initiated no earlier than Day 5 after the close contact exposure occurs. Continue reading
By Ashley D. Mitchell
As the U.S. enters month seven of the COVID-19 pandemic, employers continue to grapple with how to keep employees safe without violating the rights of employees protected by the Americans with Disability Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). The Centers for Disease Control and Prevention (“CDC”) has issued guidance to slow the spread of COVID-19 in the workplace encouraging employers to: (1) actively encourage sick employees to stay home; (2) conduct daily in person health checks such as temperature and symptom screenings; and (3) ensure that workers are able to follow social distancing guidelines as much as practicable and encouraging employees to wear face masks where social distancing is not possible. Employers should remain vigilant against enacting policies meant to keep employees safe but have a disparate impact on employees in a protected class.
The Americans with Disability Act
The Americans with Disability Act (“ADA”) prohibits employers with 15 or more employees from discriminating against job applicants and/or employees with disabilities. If a job applicant or employee has a disability and requests an accommodation, employers must engage in an interactive process and are required to provide a reasonable accommodation to the extent it does not cause the employer undue hardship.
In the context of COVID-19, employers may screen employees entering the workplace for COVID-19 symptoms consistent with CDC guidance. For example, an employer may: (1) ask questions about COVID-19 diagnosis or testing, COVID-19 symptoms, and exposure to anyone with COVID-19 (but employers should be sure the question is broad and does not ask employees about specific family members so as not to run afoul of the Genetic Information Nondiscrimination Act (“GINA”)); (2) take an employee’s temperature; and (3) administer COVID-19 viral tests (but not anti-body tests). If an employee is screened and has symptoms that the CDC has identified as consistent with COVID-19, the employer may – and indeed, should – exclude the employee from the workplace. It is also okay – and again, advisable – for an employer to send an employee home who reports feeling ill during the workday. Continue reading