On November 16, 2020, the Center for Disease Control (CDC) clarified its guidance permitting critical infrastructure workers to return to work before the end of the standard 14-day quarantine period following exposure to COVID-19.  In this updated guidance, the CDC reiterated its standard recommendation that all individuals known to be exposed to a person with suspected or confirmed COVID-19 should quarantine for 14 days, with the possible limited exception of asymptomatic critical infrastructure workers who have not tested positive for SARS-CoV-2 (“COVID-19”).

While earlier CDC guidance allowed critical infrastructure employers to consider allowing workers who were exposed but tested negative to continue to work when necessary to preserve the function of critical infrastructure workplaces; in the most recent guidance, the CDC clarifies what circumstances might warrant use of the exception stating “that reintegrating exposed critical infrastructure workers who are not experiencing any symptoms and have not tested positive back into onsite operations 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.”

The CDC stated it issued the updated guidance to align with new scientific evidence, evolving epidemiology and the need to simplify the assessment of risk; specifically:

  • Increased evidence that infected people pose a transmission risk without symptoms or before the onset of recognized symptoms;
  • Ongoing community transmission in many parts of the country;
  • A need to communicate effectively to the general public; and
  • Continued focus on reducing transmission through social distancing and personal prevention strategies.

The CDC explains that “[r]eintegrating exposed workers who are not experiencing any symptoms and who have not tested positive back into onsite operations carries considerable risk to other workers because many people with COVID-19 are asymptomatic but can still spread disease, and tests are imperfect. Bringing exposed workers back should not be the first or most appropriate option to pursue in managing critical work tasks. Quarantine for 14 days is still the safest approach to limit the spread of COVID-19 and reduce the chance of an outbreak among the workforce.”

The new guidance also encourages all critical infrastructure employers to work with local health officials on any reintegration of exposed workers and reiterates the additional risk mitigation precautions required including pre-screening, on-site screening with temperature checks, ongoing health monitoring, cleaning and disinfecting, social distancing, and ensuring all employees wear cloth masks.

This new guidance follows a trend we have seen in some states.  Since the initial CDC critical infrastructure worker guidance was issued in April, several states have adopted rules narrowing the circumstances under which critical infrastructure employers can allow asymptomatic exposed employees to continue to work.  For example:

  • In New York, employees who are exposed to COVID-19 but remain asymptomatic can continue to work if “deemed essential and critical for the operation or safety of the workplace, upon a documented determination by their supervisor and a human resources representative in consultation with appropriate state and local health authorities.”
  • In Wisconsin, the Department of Health has not endorsed exposed, asymptomatic workers returning to work before a 14-day quarantine period, however, local health departments in Wisconsin are allowed to grant case by case exceptions.
  • In New Mexico, if an essential business would be forced to cease operations due to the quarantine of exposed, asymptomatic workers, then such workers may continue working if they test negative for COVID-19 and certain safety measures are met.

In light of the new CDC guidance, critical infrastructure employers should consider reviewing their policies and procedures for returning asymptomatic exposed employees back to work, keeping in mind that state and local orders, and guidance from state and local health departments and safety agencies, may impose different and more restrictive requirements. Among other things, employers should consider:

  • Articulating and documenting the impact on operations such as how and why business operations might cease and, if applicable, the potential impact on health and safety if exposed, asymptomatic employees are held out of work for a 14-day quarantine period.
  • Consulting with the local health departments on the reintegration of exposed workers.
  • Developing plans and protocols to implement additional safety precautions, including pre-screening, health monitoring, and preventive measures.

As always, employers must also continue to comply with all applicable federal OSHA and state equivalent workplace safety requirements.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Jenifer M. Bologna Jenifer M. Bologna

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which…

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which they operate.

Jenifer specializes in preventative advice and counsel on a nation-wide basis, regularly advising clients on multi-state employment law issues to address an increasingly remote and hybrid workforce. In addition, she supports employers in navigating the complex and growing body of federal, state and local leave, accommodation and benefit laws that impact an employer’s response to employees who are injured or ill, have family care responsibilities or need time to bond with children.

Jenifer’s extensive counseling experience allows her to provide nuanced advice that helps employers effectively respond to the legal and business challenges posed by the varying array of workplace employment laws. Utilizing creative legal strategies and practical advice, she guides clients through these complex issues that often demand individualized solutions.

Jenifer’s goal is to minimize her clients’ litigation risk by working with them to implement preventative strategies and constructive solutions. As such, she regularly assists employers with policy and process development or improvement, including absence management and accommodation protocols and multi-state employment policies. Understanding there is no one-size-fits-all approach, Jenifer works with clients to develop an employment law compliance strategy that best fits their specific needs.

In addition to advice and counsel, Jenifer frequently speaks on disability and absence management issues and employment law compliance, including regularly conducting workplace training on these topics.

Photo of Francis P. Alvarez Francis P. Alvarez

Francis P. (Frank) Alvarez is a principal in the White Plains, New York, office of Jackson Lewis P.C. He is the founder and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group.

Photo of Tara K. Burke Tara K. Burke

Tara K. Burke is the knowledge management (“KM”) attorney for Jackson Lewis P.C.’s Disability, Leave & Health Management practice group, and is based in the Cincinnati, Ohio, office of Jackson Lewis P.C.