On May 13, 2021, the CDC issued new guidance stating that those who are fully vaccinated can resume activities without wearing a mask or social distancing. Following the CDC guidance, on May 17, 2021, OSHA updated its website to refer business and employers to the CDC guidelines. The door has been opened to employers and businesses to allow employees to be in the workplace without a mask, if they are fully vaccinated, but has not provided any guidance or direction on how to do so, or even made clear that employers and businesses are allowed to.
Moreover, state and local requirements and guidance have had mixed responses to the CDC and OSHA changes. What is expected of businesses and employers at this point is unclear – so what should you do?
Join Mike Wong and Carlos Arévalo on Monday, May 24 @ noon CT for a 30 minute briefing on what to expect in the coming months. Topics will include:
Risks of worker compensation claims
Reasonable accommodations under ADA and Title VII
Navigating federal, state, local, tribal or territorial laws, rules, and regulations
A question that employers often ask when someone in the workplace reports COVID-19 symptoms or a positive test is, who is the employer required to notify? Typically common sense and CDC guidelines have been that employers must engage in contact tracing and notify individuals who were in “close contact” with the person. In recent months and weeks, local and state departments of public health have continued to issue guidance, and mandates, that employers must also identify and observe and sometimes try to interpret despite conflicting statements.
For example, in December 2020, the Illinois Department of Public Health (IDPH) revised its regulations to add COVID-19, SARS and MERS to the list of Class I(a) diseases that “shall be reported immediately (within three hours) by telephone, upon initial clinical suspicion of disease to the local health authority, which shall then report to the IDPH immediately (within three hours.) Ill. Admin. Code tit. 77, § 690.100. For context, Class I(a) diseases include Anthrax, Plague, Smallpox, and suspected bioterrorist threats or events. The reporting of Class I(a) diseases has historically been the responsibility of the hospital, physician or medical provider who treats or confirms an individual’s positive tests result for such a disease. However, the applicable regulation does have a catchall provision that places reporting responsibility on “Any other person having knowledge of a known or suspected case or carrier of a reportable communicable disease or communicable disease death.” Ill. Admin. Code tit. 77, § 690.200. Taken together, these provisions arguably require employers who know of a “known or suspected case” of COVID-19 to immediately report the information to their local health authority.
“If two or more employees report having COVID-19 related symptoms or test positive for COVID-19, the employer must notify their local health department within 24 hours of being informed of the presence of COVID-19 symptoms or positive test results.”
This is a pretty significant change as it modifies the reporting from voluntary to mandatory and is unclear regarding the time period for the two cases occurring (e.g. whether it is two cases over 14 days, two months, or since March 2020). That said, under CDC guidelines for contact tracing and the guidelines of some local public health departments it is reasonable to view the applicable time period for determining whether reporting is required under IDPH regulations as a 14 day period.
To add further confusion, local public health departments may have a higher or lower standard. For example, the City of Chicago and Kane County, Illinois health departments still advise businesses that they may voluntarily report employees with symptoms or confirmed cases, but are not required to do so. While in others areas, like Winnebago County, Illinois, the local health department is telling employers that they are required to report when one (1) or more employee develops COVID-19 symptoms or receives a positive test result, and are requiring employers to submit information regarding their businesses and the individual(s) at issue (including their symptoms and demographics).
Ultimately, no matter the standard for reporting, the employer is required to cooperate with local public health authorities in the investigation of cases, suspect cases, outbreaks and suspect outbreaks. This is fairly consistent throughout the United States.
What happens if you do not comply with reporting or an investigation? – It depends on the state and local laws and regulations regarding the violations of public health laws, but generally violations can result in fines, criminal charges and even result in a business being temporarily closed down. For example, under Illinois law, failure to comply may result in a Class A misdemeanor and the IDPH and local health department have the ability to order a business be closed if it deems immediate action is required to protect the public.
BUT WHAT DOES THIS MEAN WITHOUT THE LEGALESE?
Employers MUST be aware of what requirements or guidance their local public health department has regarding reporting cases of COVID-19 AND should take steps to comply with both the state and local requirement regarding reporting when employees are suspected or confirmed to have COVID-19.
Documentation through COVID-19 Questionnaires for employees who report symptoms will become even more important. Questionnaires should include questions not only about what symptoms an employee has, but where the employee has been in the last 14 days; whether the employee or family members have interacted with individuals outside of their home for more than a cumulative 15 minutes in a 24 hour period; whether the employee or family members have visited stores or other locations within 10 or more people; etc.
Employers should recognize the potential risks, which may include fines, criminal prosecution and even being shut down, when responding to state and local public health departments’ requests for additional information and investigations. Any concerns should be vetted through competent risk management consultants and experienced legal counsel.
In a press conference held on December 2, 2020, the CDC announced their anticipated endorsement of a shortened quarantine time. Individuals without symptoms may end quarantine after seven (7) days, followed by a negative test result. Alternatively, and as a second option, individuals without symptoms may also end quarantine after ten (10) days without the need for a negative test. In regard to the seven (7) day option, a PCR or rapid test is acceptable and should be taken within 48 hours of the end of the quarantine period. Until now, the CDC has recommended a 14-day quarantine period following a potential exposure. Additionally, it’s important to note that the rules for dealing with recommended isolation periods (i.e., situations where an individual exhibits symptoms) remain unchanged.
This shortened time has been endorsed as a result of studies which found the median incubation period for COVID-19 to be five (5) days. In some cases, individuals have developed symptoms as late as two (2) weeks after exposure. However, the risk of someone leaving quarantine earlier than 14 days after exposure and transmitting the virus to someone else in the event they later become ill is small enough that the duration of the recommended quarantine time can safely be reduced. Because that small risk still exists, the CDC will continue to recommend a 14-day quarantine period when possible as that is the surest way to curb transmissions.
Officials at the CDC hope that a reduced period of recommended quarantine time will increase voluntary compliance as well as reduce the economic impact on businesses. With the winter months forecasted to hold increased community transmission and COVID-19 related deaths, updating the recommendations for quarantine to address these concerns in a safe manner is critical.
While a “close contact” is still defined as someone who was within 6 feet of an infected person for at least 15 minutes, what has changed is when the exposure occurred during the ill person’s sickness. The relevant time is now from two days before illness onset (or, for asymptomatic patients, two days prior to specimen collection) until the time the patient is isolated.
Before this change, the relevant period was from two days before symptom onset until the ill person met the criteria for discontinuing home isolation, which requires the person to be symptom free for at least three days and for at least 10 days to pass from symptom onset or, if someone is being tested, to be symptom free for three days and to have two negative tests at least 24 hours apart.
The new definition effectively reduces the time frame for identifying close contacts to as little as a few days – two days before the symptoms started to the start of home isolation could occur in three days. This change should be helpful to anyone who is faced with the task of identifying close contacts of individuals with COVID-19 – including employers, contact tracers, and public health officials. Their jobs just got a bit easier since there is now a smaller field of contacts to consider. The guidance also makes sense since, presumably, the ill person should not have any contacts (outside household members) once home isolation begins.
The CDC’s guidance continues to remind us that the 15 minute standard is not necessarily a rigid test. Factors to consider include proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), whether the individual has symptoms (e.g., coughing likely increases exposure risk) and whether either the ill person or contact was wearing an N95 respirator (which reduces the risk of exposure). Note that using a fabric face covering should not be considered as reducing risk.
Different criteria apply in healthcare settings, where a prolonged exposure is defined as any exposure greater than 15 minutes because the contact is someone who is ill. While the CDC recognizes that brief interactions are less likely to result in transmission, symptoms and the type of interaction (e.g., did the person cough directly into the face of the individual) are important.
Employers must still be vigilant about identifying close contacts of any employees who have COVID-19. If you have not established an internal policy for doing so, now is the time.
While some states are beginning to loosen their stay at home orders, others continue to only be open for essential business. On April 10thwe reported on the relaxation of the CDC guidance for safety practices for essential workers. This included advice from the CDC that critical infrastructure workers may be permitted to continue to work, or return to work, following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented by the employer including pre-screening employee’s temperatures prior to starting work.
We have seen a major uptick in employers performing temperature testing on employees prior to employees starting work which most likely is prior to an employee clocking in. Thus, many employers are asking if this time is compensable under federal and state wage and hour laws. The answer – under federal law most likely not but under state wage and hour laws it depends.
In Integrity Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513, 517, 190 L.Ed.2d 410 (2014), the US Supreme Court held that the 25 minutes plaintiff warehouse employees spent waiting for and undergoing security screenings at the end of their shifts was not compensable under the Fair Labor Standards Act (FLSA). The Supreme Court held that it was not compensable because the employer “did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” Based on Integrity, employee temperature tests are most likely not compensable under the FLSA.
Many states, however, have their own wage and hour laws which can be more stringent and have different definitions for “hours worked” than that of the FLSA. Further, states laws like Illinois, can have significant damages for violation of wage and hour laws including interest payments, treble damages and payment of attorney’s fees. Whether a company needs to compensate employees for temperature checks or increased safety protocols occurring prior to or after the work day will need to be analyzed on a case-by-case basis. However, in general, Missouri and Indiana probably would not require compensation of the time as their state laws look to federal interpretation but most likely the time would be compensable under Illinois and Wisconsin wage and hour laws.
Employers who are requiring temperature checks (and other safety protocols) must review their practices for the testing, requirements of employees, time taken to perform testing and if the employees are required to wait in line for the test to be performed. These factors (along with state laws) will impact the compensability of the time.