The Centers for Disease Control and Prevention (CDC) has issued revised interim guidance covering how and when asymptomatic critical infrastructure workers may be allowed to continue working onsite despite exposure to the Coronavirus, assuming that employers take certain precautions.
CDC defines a potential exposure as a household contact or having close contact within six feet of an individual who is confirmed or suspected who has COVID-19. The timeframe for having contact with an individual includes 48 hours prior to the individual becoming symptomatic.
The guidance applies to those who are considered critical infrastructure workers, defined as personnel in 16 sectors that the Department of Homeland Security has deemed essential to the nation’s COVID-19 response.
These include law enforcement, hazardous material response, janitorial and other custodial staff, as well as workers—including independent contractors—in food and agriculture, critical manufacturing, IT, transportation, energy, and government facilities. The guidance also applies to those who work in commercial facilities (defined as spaces that deal with large numbers of the public, like hotels and shopping malls), and terrestrial, satellite and wireless communications systems.
(Healthcare professionals also are considered critical infrastructure workers, but the CDC has issued a separate guidance document that is intended to apply to them.)
“The guidance provides useful advice for an employer to consider if it decides to allow asymptomatic but potentially exposed individuals to remain on the worksite,” says attorneys Patricia Ambrose, George Ingham, and Amy Kett of the Hogan Lovells law firm. “Employers need to carefully consider whether to allow those individuals to remain on the worksite in light of the new guidance.”
The precautions recommended by the CDC are:
Pre-screening. Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
Regular monitoring. As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
Masks. The employee should wear a facemask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
Social distancing. The employee should maintain six feet distance from co-workers and practice social distancing as work duties permit in the workplace.
Disinfect and clean workspaces. Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely, and consider increasing the frequency of cleaning commonly touched surfaces.
CDC also identified additional considerations for employers that include:
● Pilot testing the use of facemasks to ensure they do not interfere with work assignments.
● Staggering work breaks.
● Preventing employees from congregating in breakrooms and from sharing food, utensils, headsets, or other objects that are near mouth or nose.
● Increasing air exchanges in the building.
If sickness occurs, the guidance assumes that the potentially exposed employee is not exhibiting symptoms. If the potentially exposed employee becomes ill, they should be sent home immediately, surfaces in the employee’s workspace should be cleaned and disinfected, and the employer should determine who had contact with the worker once they became symptomatic, and two days prior to the onset of symptoms.
Anyone with close contact—within six feet—of the employee during this time period should be considered exposed to COVID-19.
“CDC’s advice should not be viewed as a mandate to keep potentially exposed critical infrastructure workers on the job, but instead, as opening up that possibility and providing guidance for employers to follow if such workers remain on the job,” the attorneys point out.
“Note that except for critical infrastructure workers covered by the new guidance, CDC is still recommending generally that people who have had close contact with an infected person stay home for 14 days.”
They add that the employer also should consider whether the benefit of having the worker onsite (rather than quarantining for 14 days after the exposure) is worth the risk, and this analysis will differ depending on a number of factors, including the employee’s role, the employer’s staffing needs, and the nature of the worksite and workforce.
Attorneys Otto Immel and Brenna Wildt of the Quarles & Brady law firm suggest that other employers take heed of the CDC guidelines. “Although these guidelines are designed to support the continuity of functions critical to public health, safety and economic security during the COVID-19 pandemic, employers who do not operate within critical infrastructure can also follow this CDC guidance in having asymptomatic employees continue reporting to work,” they explain.
However, Immel and Wildt remind both employers of critical workers and non-critical workers who are covered by the Families First Coronavirus Response Act (FFCRA) that those who are unable to work due to potential COVID-19 exposure may be eligible for paid sick leave under the FFCRA.