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 guidancethat 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 →
We want to alert you to a significant COVID-19 development out of the CDC yesterday. Specifically, the CDC just announced a material revision to its definition of “Close Contact.” The new definition 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, not just a single, continuous 15-minute interaction.
Close Contact – Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.
* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.
CDC’s revised view of what constitutes a Close Contact is based on an exposure study at a correctional facility. Here is the CDC’s public notice about the correctional facility analysis. The analysis apparently revealed that virus was spread to a 20-year-old prison employee who interacted with individuals who later tested positive for the virus, after 22 interactions that took place over 17 minutes during an eight-hour shift.
An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine. Recall that
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 →