Tag Archives: CDC guidance

COVID-19 “Close Contacts” Just Got a Little Closer

Contributed by Suzannah Wilson Overholt, July 1, 2020

Social distancing, black and white figures with face masks

As has come to be expected, the guidance regarding COVID-19 has changed again. This time the CDC narrowed the definition of who constitutes a “close contact” for purposes of tracing people with potential exposure to someone who has COVID-19.

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.

Must Employers Pay for Employee’s Temperature Screens in Light of COVID-19? Wage and Hour Laws May Impact Employer Safety Procedures

Contributed by Sara Zorich, May 5, 2020

Hand putting card in time clock

While some states are beginning to loosen their stay at home orders, others continue to only be open for essential business. On April 10th we 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.

Federal Law

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.

State Law

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.