We previously addressed employer best practices for preventing against and responding to the spread of COVID-19 among employees generally.
Pertinent CDC guidance applies to all categories of critical infrastructure workers identified on a list released by the Cybersecurity and Infrastructure Security Agency (CISA), a division of the US Department of Homeland Security. The CISA’s advisory list covers those who work in healthcare, law enforcement, food and agriculture, information technology and the energy sector, to name a few. The CISA’s guidance is not binding, but rather is intended to assist state and local officials in determining who qualifies as “essential”, and thus employers are encouraged to consult state-specific rules governing such designation.
According to the CDC, “exposure” means “being a household contact or having close contact within six feet of an individual with confirmed or suspected COVID-19.” The relevant timeframe for determining an essential worker’s exposure is 48 hours prior to the infected individual showing confirmed or suspected symptoms of COVID-19. “Exposure” for purposes of this guidance does not require a positive COVID-19 diagnosis on the part of the individual with whom the essential worker had contact.
Generally speaking, yes—so long as they are not showing any symptoms. The CDC has advised that most asymptomatic critical infrastructure workers may continue to work following exposure to even a confirmed case of COVID-19, provided that the below-described precautions are implemented. Healthcare industry workers, however, are subject to a more stringent set of rules for returning to work.
Importantly, this guidance does not apply to essential workers showing symptoms. Employers should instruct all employees that they should stay home from work if they are experiencing any symptoms. Moreover, workers who are symptomatic upon arrival at work, or who become sick during the workday, should immediately be isolated and sent home.
CDC guidance advises that essential workers who have been exposed to COVID-19, but who do not have symptoms, may continue working, so long as the employer implements the following safety precautions:
These practices should be treated as a minimum baseline, as many jurisdictions recommend (if not require) these as well as additional precautions, and not just for essential workers. For example, in Pennsylvania, temperature screening for all employees is required for a minimum of 14 days following the presence of an employee with a confirmed or probable case (“probable” meaning the presence of symptoms plus exposure). Furthermore, Pennsylvania guidelines require that if an exposed employee becomes sick during the workday, an employer must shut down the area where the individual has worked for at least 24 hours before cleaning and disinfecting the area. Employers should, therefore, consult local rules in addition to CDC guidelines when establishing safety protocols for essential workers.
While not explicitly required, the CDC offers testing strategy guidelines for employers in certain critical infrastructure industries for which it may be pertinent to establish COVID-19 testing protocols. The CDC advises that testing strategies should be used to enhance, not supplant, existing preventative measures, and that such testing programs should only be implemented if test results “will lead to specific actions,” including contact tracing.
Employers should notify any employees who may have come into contact with an exposed coworker; however, the name and personal identifiable information of the exposed co-worker should not be revealed, unless that person voluntarily consents to such disclosure. Any possibly exposed employees showing symptoms should then self-isolate and follow the CDC’s recommended next steps, while potentially exposed essential employees who are asymptomatic may continue working, provided the employer adheres to the above-referenced safety guidelines.
OSHA. If an employer believes an employee contracted the virus while at work, the employer may need to notify OSHA and otherwise comply with OSHA’s recording requirements.
The CDC or State Health Officials. Employers are generally not required to notify the CDC or state health officials of employee exposure or if an employee tests positive; rather the health care provider who confirms the diagnosis must relay that information to the relevant agencies.
CDC guidelines on when essential workers who have tested positive may return to work vary depending on whether the infected individual has exhibited any symptoms (though again, healthcare providers are subject to different guidelines than those set forth below).
Guidelines for asymptomatic essential workers who have tested positive. As with non-essential employees, essential workers who have tested positive but have not exhibited any symptoms may return to work once at least 10 days have passed since the date of the positive test, assuming symptoms have not developed since that time. If symptoms do develop, then the below benchmarks for symptomatic COVID-positive employees should be used.
Guidelines for symptomatic essential workers who have tested positive. The guidelines for symptomatic essential workers are the same as for non-essential workers. Symptomatic employees with a suspected or confirmed diagnosis should not return to the workplace until:
The COVID-19 Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Jonathan Krause is a partner in the Litigation Department at Klehr Harrison.