New CDC guidance allows essential workers to remain on the front lines even if they have been exposed to COVID-19, provided they are asymptomatic, but imposes more specific safety protocols, including employee screening and face coverings.
Increasing enforcement actions, business continuity considerations and potential liability heightened by evolving standards of care mean that businesses should implement policies and protocols that, at a minimum, track the employee-protection elements of CDC’s updated guidance.
Employers should consider this guidance as an initial template that may be part of a patchwork of standards that emerge as officials aim to protect the workforce while easing social-distancing restrictions.

While most of the country continues under “stay at home” orders, “essential” or “critical infrastructure” employees remain exempted. Yet, as outbreaks of COVID-19 are occurring throughout the country, “essential” businesses are not immune to infection, presenting risks for the workforce and the continuity of these businesses. Indeed, media reports have highlighted several “essential” businesses with outbreaks, resulting in large numbers of critical employees being absent in some areas, such as law enforcement and health care, and shutdowns of essential production, manufacturing and food supply operations. The CDC’s new interim guidance means to respond by providing updated protocols for “essential” businesses needing to ensure a sufficient workforce while better managing risks to employees and people interfacing with essential personnel. As discussions begin across the country about the lifting or modifying of stay-home orders, businesses should look to these guidelines as minimum standards to begin preparing their workplaces for a new normal.

Prevention and Response Measures

It is important for businesses to stay abreast of the continuously evolving guidance on workplace safety.  In addition to the measures outlined in the new CDC guidance, employers are encouraged to incorporate the CDC’s March 21, 2020 Interim Guidance for Businesses and Employers to Plan and Respond to COVID-19. This guidance, in conjunction with OSHA’s Control and Prevention Guidance, suggest the following best practices for employers to prevent, identify, assess, and mitigate risks of exposure to, and infection with, COVID-19:

1.  Prevention

  • Increased Sanitization: Promote hand washing; provide sanitizing stations; make sanitizing wipes available in often touched areas; clean common areas frequently; discourage sharing of equipment;
  • Policies: Require social distancing of at least six feet; allow frequent handwashing; encourage respiratory etiquette (covering coughs and sneezes); implement flexible sick leave policies;
  • Equipment: Provide Personal Protective Equipment (PPE), such as gloves and masks; install sneeze guards and other protective barriers; install high-efficiency air filters; increase facility ventilation rates;
  • Work Structure: Stagger shifts; Encourage remote work; downsize operations; discontinue non-essential travel and large gatherings;
  • High-Risk Employees: Identify high-risk employees, such as older adults and those with chronic health conditions, and reassign tasks or change work spaces to ensure a minimum six-foot distance from others, or allow these individuals to telework.

2.  Identify and Assess Potential or Confirmed Cases

  • Require employees to immediately report COVID-19 symptoms, or if they have a sick family member at home;
  • Require employees showing COVID-19 symptoms to stay home;
  • If an employee is confirmed with COVID-19, employers should inform fellow employees of their possible exposure without identifying the individual;
  • Do not allow a sick employee to return to work until he/she 1) has had no fever for 72 hours; 2) respiratory symptoms have improved; and 3) at least seven days have passed since the employee was first symptomatic, or if tested, then at least two swab tests, taken 24 hours apart, have returned negative.

3.  Mitigate Risk of Exposure and Infection

  • Immediately isolate exposed employees from others;
  • Restrict the number of personnel entering affected areas;
  • If possible, close affected areas and wait 24 hours or as long as practical before beginning cleaning and disinfection;
  • Open up doors and windows to increase air circulation;
  • If the employee was exposed “on the job” as part of his/her work-related duties, it may be an OSHA-recordable illness.

Guidelines for Asymptomatic Critical Infrastructure Employees Exposed to COVID-19

Under the prior guidance, critical employees were required to quarantine if exposed to COVID-19.  Pursuant to the new guidance, critical workers may continue working following a potential exposure to COVID-19, provided they remain asymptomatic and the employer takes additional precautions to protect them and the community, including:

  • Screening: The employer should measure the employee’s temperature and assess symptoms before the employee begins work, and ideally before the employee even enters the worksite. The EEOC has already issued guidance stating that such temperature checks do not violate the Americans with Disabilities Act (ADA), and explained what may be done with this information.
  • Regular Monitoring: The employee should continue to self-monitor for symptoms;
  • Wear a Mask: A face mask should be worn at all times for 14 days after the last exposure. The employer is not required to provide these masks, but should verify the employee’s mask complies with the CDC’s recently-issued guidance regarding effective face coverings;
  • Social Distancing: Although already included in other CDC guidance and many state and local Stay Home orders, the guidance reiterates that the employee should maintain a minimum six-foot distance from others in the workplace;
  • Disinfecting Work Spaces: The employer should also routinely disinfect shared areas, such as offices, bathrooms, and shared equipment.

If the exposed employee becomes symptomatic, the employer should send the employee home immediately, disinfect the employee’s workplaces, and compile information on all persons who had contact with the employee while they were symptomatic, and during the two days prior to symptoms showing. Other employees who had close contact (less than six feet) are now considered exposed and are subject to the aforementioned procedures.

Employers should be aware that these screening measures are by no means foolproof, and that other workplace precautions may be warranted. Caution should also be taken to ensure that all employees’ health information be kept private in compliance with Americans with Disabilities Act and employee privacy requirements.

Notably, this guideline may invite increased risk of exposure to the workforce and customers, with corresponding business continuity implications. As such, many businesses may give further consideration to whether they will allow, or even require, asymptomatic employees who have been exposed to COVID-19 to remain in 14-day quarantine.

Forced Shutdowns of Essential Businesses

On Sunday, April 12, Smithfield Foods, one of the largest contributors to the U.S. meatpacking industry, closed its South Dakota facility indefinitely after 238 of the site’s 3700 employees were diagnosed with the coronavirus. This growing number of COVID-19-positive workers accounted for more than half the county’s reported cases, causing South Dakota Governor Kristi Noem to reach out to the Smithfield president and urge that he “do more” to protect its employees and the community. The closure follows a number of other meat processing facility shutdowns, which, according to the Smithfield president, will have “severe, perhaps disastrous, repercussions for many in the supply chain.” High-stakes closures such as these further demonstrate the need for employers to take carefully examine what precautions are needed to protect employees, particularly those who must work in proximity, and against the risk of production-stopping outbreaks.

In a development even more alarming than the disruptions to U.S. supply chains, U.S. healthcare workers and law enforcement have been falling ill in increasing numbers, forcing thousands to step away from the front lines. On Tuesday, April 14, the CDC reported that 9,282 U.S. health care workers have been infected with COVID-19—a number it said was likely to go up as health care facilities take on more cases. Law enforcement officers have borne the brunt of the virus in equal numbers. As of Monday, April 13, approximately 6,000 officers—or 17 percent—of the New York Police Department were out sick. At the end of March, nearly one-fifth of Detroit’s police force was put into quarantine. Meanwhile, the Chicago Police Department has just confirmed it has over 200 active COVID-19 cases. These numbers dwarf the reported cases at the Los Angeles Police Department, which has had only 57 confirmed cases to date, likely due to California’s earlier implemented social distancing measures. Starting on Wednesday, April 15, the NYPD will begin taking the temperatures of its officers in an effort to slow the virus’s spread.

Further, although the CDC guidance is not binding, it has nonetheless formed the basis for multiple COVID-19-related shutdowns. Just last week, the City of Miami Beach shut down three multi-million dollar construction sites were due to alleged “failure[s] to comply with the CDC safety regulations during the COVID-19 emergency period.”

More such enforcement actions may follow across a broader swath of industries. Many other states, such Florida, Pennsylvania and Texas, require employers to follow CDC guidelines and have the authority to shut down businesses failing to comply with these guidelines. Because these shutdowns will come with increased legal costs associated with litigating these actions, as well as the associated business interruption and damage to reputations, businesses are incentivized to follow CDC guidance and implement additional policies and procedures to avoid government scrutiny in the first instance.

Limiting Exposure to Liability and Lawsuits

Developing new standards will also be helpful to limit exposure in civil litigation. Lawsuits have started to crop up based upon employers’ alleged failure to take proper precautions to protect their employees. The standard of care is rapidly changing in this environment. It is certainly possible that an employee’s infection arising from an employer’s alleged failure to follow federal, state, or local screening requirements, or to enforce applicable mask-wearing requirements upon its visitors or customers, may result in liability exposure. For example, workplace safety claims, privacy claims, employment discrimination claims, and personal injury lawsuits, to name a few causes, are all possible. Accordingly, employers should prepare now by adhering to these new and evolving protocols, not only for the safety of their employees and consumers, but also to preclude potentially avoidable legal action.

Forward Looking: Preparing for the Easing of Restrictions 

For now, the new guidelines are focused on essential workers. However, as the government looks to lift or modify social distancing guidelines and orders in an effort to support the country’s economic well-being, and in light of public health officials’ warnings of a second wave of outbreaks, it is likely that these or similar restrictions will be extended to businesses overall. While employers are eager to bring their businesses back to life, now is the time to begin thinking carefully about the protocols and standards that will promote a safe and successful return. Likewise, businesses should consider the impact on creating an environment that promotes customer and consumer confidence, which is likely to continue to be impaired by the ongoing presence of the virus even as restrictions on operations begin to ease. These current guidelines serve as a useful starting point for any employer looking to plan ahead in our new world.

Pillsbury’s experienced multi-disciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.

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