The National Labor Relations Board (NLRB) has established standards for its regional directors to weigh in on whether a representation election in which COVID-19 is a concern should be conducted by mail ballot or in-person (manual) ballot. Aspirus Keweenaw, 370 NLRB No. 45 (2020).

Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel joined in the majority decision. Member Lauren McFerran wrote a separate concurring opinion.

Although NLRB policy strongly favors in-person elections, during the pandemic, approximately 90% of NLRB representation elections conducted since March have been ordered by regional directors to be conducted by mail, according to the NLRB. For more on this issue, see our article, Plan Ahead, Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Pandemic. (When those orders have been appealed to the NLRB, the NLRB has approved the decisions because of the risks associated with the pandemic.)

In Aspirus Keweenaw, the employer, located in Wisconsin, requested a manual ballot election. The Regional Director directed a mail ballot election “based on the extraordinary circumstances presented by the COVID-19 pandemic.” On appeal, the NLRB set forth six situations associated with the pandemic, and noted that, when one or more exists, a mail ballot election normally is more appropriate.

Employers have long disfavored mail ballot elections for a number of reasons, including that voter participation is lower than in connection with a manual ballot election. (Conventional wisdom is that higher voter participation favors the employer.) In Aspirus Keweenaw, the NLRB noted statistics that support employers’ participation concerns. Between October 1, 2019, and March 14, 2020, the NLRB had conducted 508 manual ballot elections, in which 85.2% of eligible voters cast a ballot and that, during the same time period, 48 mail ballot elections had been conducted in which only 55% of eligible voters cast a ballot. The NLRB further noted that, from March 15, 2020, through September 30, 2020, the NLRB conducted 46 manual ballot elections, in which 92.1% of eligible voters cast a ballot and 432 mail ballot elections in which only 72.4% of eligible voters cast a ballot.

The NLRB outlined the following six circumstances, which are to be applied retroactively:

  1. The NLRB office that will conduct the election is operating under “mandatory telework” status.
  2. Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is 5 percent or higher.
  3. The proposed manual election site (almost always the employer’s facility) cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
  4. The employer fails or refuses to “unequivocally” commit to abide by the protocols contained in GC Memorandum 20-10. For more on those protocols, see our blog, NLRB General Counsel Issues Guidelines for In-Person Elections During COVID-19 Pandemic.
  5. There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
  6. Other similarly compelling circumstances.

The NLRB remanded the case to the Regional Director to reconsider her decision applying the guidelines in Aspirus Keweenaw.

On September 17, 2020, Governor Gavin Newsom signed Assembly Bill 685 (“AB 685”) into law, and in doing so amended provisions of California’s Health and Safety and Labor Codes. AB 685 explicitly amended Labor Code section 6409.6 to grant California’s Division of Occupational Safety and Health (“DOSH” or “Cal OSHA”) authority to issue: (1) Orders Prohibiting Use (“OPU”) in certain circumstances where COVID-19 presents an imminent hazard, and (2) citations alleging serious violations of occupational health and safety requirements related to COVID-19 without giving employers 15-day pre-citation notice.  The law also mandates a written notification to all employees following known potential exposure to COVID-19 in the workplace, which Cal OSHA has authority to enforce, and notification to local and state public health departments of COVID-19 “outbreaks.”

As the California Department of Public Health (“CDPH”) had previously issued guidance to California employers and businesses in the form of a playbook, which defined an “outbreak”, and the state’s regulatory framework gives CDPH responsibility for management of communicable diseases, AB 685 left the definition of ”outbreak” up to CDPH.

On October 16, 2020, CDPH issued additional guidance on AB 685 with the following definitions:

  1. COVID-19 “outbreak”:
    • A COVID-19 outbreak is defined in a non-healthcare workplace as at least three COVID-19 cases among workers at the same worksite within a 14-day period.
      • Under AB 685, a COVID-19 case is someone who:
        • Has a positive viral test for COVID-19,
        • Is diagnosed with COVID-19 by a licensed health care provider,
        • Is ordered to isolate for COVID-19 by a public health official, OR
        • Dies due to COVID-19, as determined by a public health department.
  • Under AB 685 Section 4 (Labor Code Section 6409.6, subsection (a)(4(b)), if an employer or their representative is notified of the number of cases meeting the definition of a COVID-19 outbreak, they must notify the local public health agency in the jurisdiction where the worksite is located.
  • Non-healthcare employers must therefore report to the local public health agency when three or more workers with COVID-19 are identified within a 14-day period.
  • Health facilities, who are exempt from AB 685’s mandate to report outbreaks to local health departments, should follow CDPH reporting guidance for healthcare facilities.
  1. Infectious period:
    • For an individual who develops COVID-19 symptoms, the infectious period for COVID-19 begins 2 days before the individual first develop symptoms. The infectious period ends when the following criteria are met: 10 days have passed since symptoms first appeared, and at least 24 hours have passed with no fever (without the use of fever-reducing medications), and other symptoms have improved.
    • For an individual who tests positive but never develops symptoms, the infectious period for COVID-19 begins 2 days before the specimen for their first positive COVID-19 test was collected. The infectious period ends 10 days after the specimen for their first positive COVID-19 test was collected.
    • Under AB 685 Section 4 (Labor Code Section 6409.6, subsection 1), employers must provide notice to all employees who were present at the same worksite as someone with COVID-19 during their infectious period.
  2. Laboratory-confirmed case of COVID-19:
    • A laboratory-confirmed case of COVID-19 is defined as a positive result on any viral test for COVID-19.

CDPH’s guidance goes on to convey that healthcare facilities, who are exempt from AB 685’s mandate to report outbreaks to local health departments, should follow CDPH reporting guidance for healthcare facilities.

In addition to the Definitions, the CDPH also published a memorandum on “Employer Questions about AB 685, California’s New COVID-19 Law.”  The questions provide some general insight for employers on AB 685’s employee notification requirements as well as the reporting requirements to local health departments.

The guidance states employers must report all COVID-19 outbreaks to their local health department.  Once the threshold for an outbreak is met, meaning three or more positive cases have occurred within a 14-day period, employers have 48 hours to report the cases to the local health department having jurisdiction over the worksite location.

Following an outbreak notification, employers also must continue to notify the local health department of any new COVID-19 cases identified among workers at the worksite and cooperate with the health department’s investigation.

Initial reports to Local Health Departments should generally include:

  1. Information about the worksite – the name of company/institution, business address, and North American Industry Classification System (“NAICS”) industry code.
  2. Names and occupations of workers with COVID-19.
  3. Additional information requested by the local health department as part of their investigation.

Notification and reporting requirements under AB 685 go into effect on January 1, 2021, and will last until January 1, 2023, and may be further extended. Until the outbreak notification requirements under AB 685 go into effect, California employers should still be aware that they may have notification obligations under standing local health department orders.

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

In September, when Governor Newsom signed Assembly Bill 1867, employers hoped that the state-wide COVID-19 Supplemental Leave was a replacement for the patchwork of local ordinances. However, due to differences in coverage, many employers are faced with complying with the more stringent local ordinances. In particular, many local ordinances allow an employee to take paid leave to care for a family member if their school or place of care is closed due to COVID-19.  AB 1867 does not provide leave for this purpose.

The local ordinances also have other differences that employers need to consider.  One of the biggest is when they expire.  AB 1867 provides that its leave provisions will sunset on the later of December 31, 2020, or expiration of any federal extension of the Emergency Paid Sick Leave Act established by the Families First Coronavirus Response Act (“FFCRA”).  However, several local ordinances differ, including the City of Los Angeles ordinance (2 weeks after the expiration of the COVID-19 local emergency period) and the San Francisco ordinance (currently December 12, 2020, unless extended by the Board of Supervisors).   Other ordinances, including the City of Oakland, City of San Diego, and County of Los Angeles contain language which allow for extensions beyond December 31, 2020, if approved by elected officials.

Employers in a jurisdiction that has adopted a local COVID-supplemental sick leave ordinance should ensure that they comply with both state and local laws.   Jackson Lewis will continue to track the status of federal, state, and local ordinances pertaining to COVID-19 and paid sick leave.  If you have questions about compliance with California leave requirements pertaining to COVID-19 contact a Jackson Lewis attorney to discuss.

Following the October 2, 2020 Michigan Supreme Court decision invalidating Governor Gretchen Whitmer’s pandemic executive orders, the Michigan Occupational Safety and Health Administration (MIOSHA) issued temporary emergency rules to help control, prevent and mitigate the spread of COVID-19.

Effective October 14, 2020, these rules apply to all employers currently covered by Michigan’s Occupational Health and Safety Act. MIOSHA promulgated these rules at the behest of business associations and unions asking for a more formal and understandable framework to handle COVID-19 in the workplace. The rules remain in effect for six months and can be extended for another six months upon Governor Whitmer’s certification of need.

Exposure Determination

Under the rules, employers must go beyond simply creating a COVID-19 preparedness and response plan consistent with CDC and OSHA guidance. Employers must now make an exposure determination by categorizing job tasks and procedures based on actual or anticipated contact with suspected or known COVID-19 cases.

Preparedness Plan

Based on the various exposure levels anticipated in the workplace, employers must develop and implement a written preparedness and response plan detailing measures to prevent exposure. This will include engineering controls, administrative controls, basic infection prevention measures, personal protective equipment, health surveillance and training. The plan must be communicated to employees by hard copy or company website or intranet.

Infection Prevention Measures

Basic infection prevention measures must include promotion of hand hygiene, preventing sick employees from reporting to the workplace, limiting shared equipment, and increased facility cleaning and disinfection. Notably, the rules require employers to create a policy prohibiting in-person work where work activities can feasibly be done remotely.

Health Surveillance

Heightened health surveillance measures are now required, including daily entry self-screening for all entering the workplace, such as a symptoms and exposure questionnaire and temperature check. Employees must promptly report COVID-19 symptoms. Employers must isolate employees known or suspected to have COVID-19 from the rest of the workforce. The local public health department must be immediately notified of a confirmed case, and co-workers, contractors or suppliers who may have had contact must be notified within 24 hours.

Workplace Controls

Additional workplace controls must be instituted, including designation of an on-site safety coordinator responsible for implementing, monitoring and reporting the control strategies implemented. Signage, markings and physical barriers should be used to remind employees of proper hand hygiene and keeping appropriate distance. Face coverings must be provided at no cost to the employee.

Personal Protective Equipment

Personal protective equipment, including respirators if necessary, must be provided appropriate to the exposure risk associated with the job and in accordance with current CDC and OSHA guidelines. More specific requirements are listed for various industries, namely construction, manufacturing, retail, restaurants and bars, health care, in-home and personal services, public accommodations, sports and exercise facilities, meat processing plants and casinos.

Training and Recordkeeping

The rules require employers to train employees on infection control practices, proper use of personal protective equipment, notification of suspected or confirmed COVID-19 cases and reporting of unsafe working conditions. Records must also be kept of the training, screening protocols and notifications made under these rules.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

The Cybersecurity and Infrastructure Security Agency (CISA), the Federal Bureau of Investigation (FBI), and the U.S. Department of Health and Human Services (HHS) have issued a joint cybersecurity advisory stating they have credible information of an increased and imminent cybercrime threat to U.S. hospitals and healthcare providers.

The advisory describes the tactics, techniques, and procedures (TTPs) used by cybercriminals against targets in the Healthcare and Public Health Sector (HPH) to infect systems with Ryuk ransomware for financial gain. The advisory provides technical details on the threat from Ryuk ransomware and new Trickbot malware modules named Anchor. The anticipated threat posed by this malware and ransomware is using encryption to interfere with a hospital’s access to its systems and ability to provide care and holding a decryption key for ransom.

In addition to the technical details, the advisory identifies steps hospitals and healthcare providers should take to protect themselves from this cybercrime threat. Those steps include maintaining an up-to-date business continuity plan and other best practices.

Network Best Practices

  • Patch operating systems, software, and firmware as soon as manufacturers release updates.
  • Check configurations for every operating system version for HPH organization-owned assets to prevent issues from arising that local users are unable to fix due to local administration being disabled.
  • Regularly change passwords to network systems and accounts and avoid reusing passwords for different accounts.
  • Use multi-factor authentication (MFA) where possible.
  • Disable unused remote access or Remote Desktop Protocol (RDP) ports and monitor remote access or RDP logs.
  • Audit user accounts with administrative privileges and configure access controls with the least privilege necessary in mind.
  • Audit logs to ensure new accounts are legitimate.

Ransomware Best Practices

  • CISA, FBI, and HHS do not recommend paying ransoms. Further, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) recently issued an advisory alerting companies of the potential sanctions risk for facilitating ransomware payments.
  • Regularly back up data, air gap, and password-protect backup copies offline.
  • Implement a recovery plan to maintain and retain multiple copies of sensitive or proprietary data and servers in a physically separate, secure location.

User Awareness Best Practices

  • Focus on awareness and training. Because end users are targeted, make employees and stakeholders aware of the threats (such as ransomware and phishing scams) and how they are delivered.
  • Provide users training on information security principles and techniques as well as overall emerging cybersecurity risks and vulnerabilities.
  • Ensure that employees know who to contact when they see suspicious activity or when they believe they have been a victim of a cyberattack.

The advisory notes that addressing the risks posed by malware and ransomware attacks will be particularly challenging for hospitals and healthcare providers during the COVID-19 pandemic. Additional advice on avoiding and responding to an attack is available here. If you have questions about this advisory or how best to assess and manage the risks identified in the advisory, please contact a Jackson Lewis attorney.

Announced via Tweet by Chad Wolf, Acting Secretary of the Department of Homeland Security, the COVID-related restrictions at the Canadian and Mexican borders have been extended yet again until November 21, 2020. These restrictions apply to land and sea entries and prevent entry for non-essential purposes. Although there continues to be some inconsistency at ports of entry, travel for work is generally permitted whereas travel for tourism including sightseeing, recreation, and cultural events is not considered to be “essential.”

For the first time since instituted, Acting Secretary Wolf indicated that these restrictions may ease in the future.

If you have questions about these restrictions as well as Canadian quarantine requirements, Jackson Lewis attorneys are available to assist.

Eight months into the coronavirus (“COVID-19”) pandemic and employers in both healthcare and non-healthcare settings are grappling with requirements for employees’ use of personal protective equipment (“PPE”) and respiratory protection. Rather than clarify the requirements, continually evolving guidance from the Centers for Disease Control and Prevention (“CDC”), Occupational Health and Safety Administration (“OSHA”), state safety agencies, and state and local health departments only confound the issues by either overstating the requirements in an effort to simplify them or being overly detailed and appearing to conflict with other agency guidance. In some cases, employers’ good-faith efforts to satisfy the requirements are also hampered by limitations in PPE supplies, resources, time, or competing COVID-19 priorities, creating impossible situations and often a balancing of regulatory risks and potential liabilities.

Since March, CDC and federal OSHA guidance have instructed employers to conduct a hazard assessment to determine employees’ risk of workplace exposure to COVID-19 and take appropriate responsive controls. In effect, this guidance encourages all employers to consider COVID-19 a recognized hazard and implement basic infectious disease control and prevention measures, as well as social distancing, good hygiene practices, and enhanced cleaning and disinfection protocols. Higher risk industries, or those industries where employees must or are likely to have close contact (fewer than 6 feet of physical distance) with individuals known or suspected of having COVID-19, were also directed to use appropriate PPE, such as gloves, gowns, safety glasses, masks, and, in some cases, respiratory protection, such as NIOSH approved filtering facepiece respirators like the N95. But determining when exactly a respirator is needed continues to be a moving compliance target. OSHA’s most recent guidance on N95s and N95 use, published in the form of an answer to a frequently asked question (“FAQ Guidance”), also does little to direct employers by stating simply that N95s provide effective personal protection against COVID-19 and that employers are responsible for ensuring employees are protected enough against potential workplace exposures to COVID-19. OSHA’s FAQ Guidance further takes the impractical position of directing employers to cease or delay operations “whenever a [COVID-19] hazard presents an imminent danger,” N95s are unavailable, and other controls do not eliminate the COVID-19 exposure risk. This guidance, in application to healthcare settings, is partially inconsistent with CDC guidance on Optimization Strategies for PPE Supplies, which allows for use of alternative PPE in some cases and does not require full elimination of a COVID-19 exposure risk.

CDC, in fact, has consistently conveyed in guidance that in a healthcare setting, employees should use Standard Precautions, Contact Precautions, and Airborne Precautions and eye protection when caring for patients with confirmed or possible COVID-19. Through its guidance, CDC has directed healthcare employees to implement universal use of PPE and wear, at a minimum, a surgical mask, gloves, eye protection (i.e., safety glasses or face shield), and gown whenever interacting with an individual who is known or suspected of having COVID-19. At the same time, and to the extent feasible, some form of source control, such as a physical barrier or patient’s use of a cloth face covering or mask, should also be used to minimize the risk further of transmitting disease. Respiratory protection, in contrast, is reserved for higher risk procedures, or aerosol generating procedures and surgical procedures that pose a higher risk of transmission if the patient is COVID-19. CDC guidance does not, however, direct healthcare employees to wear respiratory protection simply because there is a potential exposure to COVID-19 in the workplace or risk of exposure to COVID-19 cannot be eliminated.

There are many reasons for limiting the required use of respiratory protection to protect against COVID-19 to use during aerosol generating procedures and certain surgical procedures. To begin with, respiratory protection equipment is simply not available in quantities that could meet the healthcare industry’s demand for universal use. Use of respiratory protection equipment can also put a physical strain on the individual wearing the equipment and cause worker discomfort. Requiring employees to wear respiratory protection also creates a substantial compliance obligation under federal and state occupational health and safety laws. This compliance obligation, which involves, among other things, having a written program, medical surveillance, and fit-testing is even more difficult for employers to comply with in normal times, and nearly impossible to comply with amid the COVID-19 pandemic. In fact, because of supply demands, employers who need respirators are facing many supply shortages. To overcome a supply shortage, employers must often supply employees with respirators that are from a different supplier or manufacturer, creating fit-testing compliance challenges. Supply shortages have also made required fit-testing impossible because of the unavailability of fit-testing kits and equipment. Similarly, because of the spread and incidents of COVID-19 in certain areas, healthcare employees, who but for COVID-19 would never need to wear a respirator, may not be able to undergo medical evaluations before needing to wear a respirator to protect against a COVID-19 exposure in the workplace.

Despite guidance from CDC and OSHA acknowledging issues in PPE and respiratory protection supply shortages, as well as obstacles from COVID-19 circumstances, federal OSHA and state equivalent agencies are aggressively pursuing enforcement of PPE and respiratory protection program violations. A cursory look at OSHA’s COVID-19 enforcement data shows the agency is actively citing hospitals, health care centers, rehabilitation centers, and long-term care and skilled nursing facilities for violating the Respiratory Protection Standard in connection with requirements for written programs, annual fit-testing, and medical evaluations.

Therefore, even if employers are not on the frontline for managing COVID-19, CDC and federal OSHA’s guidance make clear that employers need to conduct a hazard assessment to determine risks of exposure to COVID-19 in the workplace and ensure employees are wearing appropriate PPE and respiratory protection. While employers in healthcare settings need not require universal use of respiratory protection to achieve compliance with CDC infection control and preventive requirements, they will want to ensure their hazard assessment details the rationale behind their selection of PPE for each task or procedure. Employers that are requiring to wear filtering facepiece respirators, such as the N95, should also ensure they comply with applicable federal and state requirements by having a written program and procedures, conducting required medical evaluations and fit-testing, and ensuring employees are fully trained and that this training is documented. Moreover, employers that are unable to achieve full compliance with OSHA’s PPE and Respiratory Protection Standards for whatever reason should maintain detailed records for why full compliance could not be achieved, interim control efforts, and steps taken to come into compliance to preserve a defense against an OSHA citation or enforcement action.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

Just when you thought you had your contact tracing protocol down for dealing with COVID-19 exposures, CDC guidance has changed again.

The CDC has now expanded the definition of close contact to be  “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.”  Under the new definition, three five-minute encounters, five three-minute encounters, or fifteen one-minute encounters over a 24 hour period (which could overlap on two workdays) could all be considered “close contacts.”  The CDC states that  “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.”   But then the CDC appears to add some flexibility into the definition, stating that 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).

According to the CDC, “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.”

This change will make contact tracing more difficult to be sure.  But it is a good time to remind employees of the importance of maintaining social distance at all times.

As we continue to follow the ever changing COVID saga, the attorneys at Jackson Lewis and our COVID-19 Taskforce are available to assist you with your questions and employee issues, including how to implement this new guidance into your protocols.  You can also gather additional information and resources from our COVID-19 web page, our multi-state COVID-19 Advisor and our new COVID-19 Employment LitWatch.

The B-1 in lieu of H-1B visa has been used by international companies to bring employees who remain on payrolls abroad to the United States for short periods of time (generally fewer than six months) to do professional level work that benefits the company abroad. Through the rulemaking process, the Department of State is proposing to eliminate the B-1 in lieu of H-1B.

This is the government’s latest move under the authority of President Donald Trump’s Buy American, Hire American Executive Order. Others include the proclamation that was meant to block the entry of individuals in H-1B status on account of COVID-19 and new rules that would upend settled employment expectations by tightening H-1B regulations and raising H-1B wages – all of which are subjects of litigation.

According to DOS, only about 6,000 – 8,000 of these visas are issued annually. The Administration continues to rigorously enforce its mandate to protect economic interests in the United States and the B-1 in lieu of H-1B is the most recent casualty. The rationale is that these individuals enter the United States in B-1 in lieu of H-1B status without complying with the more rigorous prevailing wage requirements of an H-1B or filing petitions with USCIS, depriving USCIS of its filing fees. But in most instances, B-1 in lieu of H-1B status is used conscientiously and foreign workers do not replace U.S. workers – they are doing work for the benefit of a foreign entity for a very limited period. If the proposed rule goes in effect, only employees who qualify for “regular” B-1 status as business visitors will be allowed to use B-1 business visas. This would include, among other things, engaging in commercial transactions that do not involve gainful employment, taking orders, negotiating contracts, consulting with business associates, participating in litigation, attending conventions, conferences or seminars, and undertaking independent research.

Comments on the proposed rule may be submitted until December 21, 2020. If the new rule is enacted, those with valid B-1 in lieu of H-1B visas at that time will not have their statuses revoked. However, the proposed rule notes that individuals will be subject to independent reviews by the Department of Homeland Security upon entry into the United States. This may suggest that travelling in B-1 in lieu of H-1B status might become risky.

Jackson Lewis attorneys are available to assist you with questions about how this proposed rule might affect your employees, and we will provide updates as they become available.

On Wednesday, October 21, 2020, the CDC issued new guidance expanding the definition of a “close contact” from someone who has been within 6 feet of a COVID-19 positive person for 15 minutes or more to:

“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.”

This shift in definition appears to be based on a case study of a single prison guard in Vermont who contracted COVID-19 after interacting within 6 feet of 6 inmates who subsequently tested positive for COVID-19. In an article also published on the CDC’s website on Wednesday, the authors noted that the prison guard had 22 interactions with the 6 inmates for a cumulative 17 minutes over a 24-hour period. Seven days later, the prison guard began experiencing COVID-19 symptoms and 5 days after that he tested positive for COVID-19. The inmates had worn microfiber cloth masks during most interactions with the prison guard that occurred outside a cell but had several interactions with the prison guard without masks. The prison guard wore a microfiber cloth mask, gown, and goggles for eye protection in all his interactions. He also wore gloves during most interactions.

The prison guard anecdotally reported no other known close contact exposures to persons with COVID-19 outside work and no travel outside Vermont during the 14 days preceding illness onset. The article also notes that the community transmission was low at the time, with just 20 cases per 100,000 persons. This prison guard was only 1 out of 13 employees who were exposed to the infectious inmates who tested positive for COVID-19 despite not meeting the definition of having close contact.

What this article does not mention is whether the prison guard and inmates, were wearing their cloth masks appropriately, covering their mouths and noses. Given the vast number of people who do not cover their noses or otherwise wear their masks as chin accessories, there are potential flaws with this “study.” The article also does not note any significance as to whether being exposed to 6 different persons with the virus, who may have varying levels of contagiousness, may have also played a factor. Nor does it note whether the prison guard had any underlying health issues making him particularly vulnerable to transmission of the virus. Moreover, this study lacks an appropriate sample size from which to draw a conclusion about close contacts and this situation could be an outlier.

Notwithstanding these concerns, the CDC is using this information to expand the definition of “close contact.” This much broader definition of “close contact” will likely turn contact tracing on its head, as it will greatly expand the universe of who may be considered a “close contact,” complicating an already impossible task.

This new definition will certainly impact safety and health compliance in the workplace and may have a significant economic impact on businesses. Will this new guidance keep people at home instead of dining out? Will customers continue to shop in brick and mortar stores? Will people be willing use public transportation? These industries are going to face new challenges in providing a safe environment for employees and the public alike. And, for those employers who thought they were safe from OSHA enforcement by following CDC guidance, this new definition is a game changer. OSHA may now use broad definition of “close contact” to support its position that many more COVID-19 cases are “work-related” than previously thought, potentially triggering OSHA recording and reporting requirements. This ever-shifting guidance on COVID-19 continues to plague employers trying to keep their workplaces safe and further demonstrates why OSHA should not be trying to regulate what is actually a public health crisis.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.