Employers in essential or “critical infrastructure” industries face significant challenges in maintaining business operations while ensuring the health and safety of their employees and their community.  Although workers in various industries are now working remotely, many employers (and their employees) that provide essential services do not have that luxury.  As a result, businesses engaged in critical infrastructure should implement protocols and policies to limit potential exposure and ensure the health and safety of their employees.  

On April 8, 2020, the Centers for Disease Control and Prevention (“CDC”) relaxed its previous guidance on critical infrastructure workers returning to work or continuing to work after being “potentially exposed” to COVID-19. According to the CDC, an employee is “potentially exposed” if they are in a household with, or have been closer than six feet from, an individual who has confirmed or suspected COVID-19, within 48 hours before the individual became symptomatic.  The interim guidelines now allow critical infrastructure workers who have had potential exposure to COVID-19 to return to work more quickly or to continue working, provided the workers (i) are and remain asymptomatic; and (ii) that their employer(s) implement certain policies and/or protocols to protect their employees, as well as the community. 

Why Has the CDC Revised Its Self-Isolation Guidelines for Particular Job Categories?

The question of what to do when an employee becomes exposed to COVID-19 is becoming more common for essential businesses that continue operations during quarantine and/or shelter-in-place orders. When announcing these guidelines, the CDC’s Director stated: “One of the most important things we can do is keep our critical workforce working,” noting that these guidelines would help stabilize the workforce and avoid a shortage in the critical infrastructure sectors. 

To Whom Does the Interim Guidance Apply?

The CDC’s interim guidance only pertains to “critical infrastructure workers” in sixteen (16) different sectors of work, previously defined by Cybersecurity and Infrastructure Security Agency (“CISA”) as the chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, materials and waste, transportation systems, and water and wastewater systems sectors.  These sectors were previously identified because their “systems and assets, whether physical or virtual, [are] so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.” 42 U.S.C. § 5195c(e).

What Is the New CDC Guidance?

Previously, the CDC recommended that any worker having “close contact” with an individual suspected or confirmed to have COVID-19 be sent home for a period of up to fourteen (14) days. As of April 8th, essential or critical infrastructure workers are advised that they can stay and/or return to work, so long as they are and remain asymptomatic, and employers take the following additional precautions:

• Measure the employee’s temperature and assess their symptoms prior to the employee starting work.  Employers should ensure that they have proper mechanisms and procedures in place prior to implementing temperature monitoring of employees.  Further, the CDC notes that an employee temperature check should ideally take place before the employee enters the facility.
• Increase the frequency with which the employer cleans and disinfects all areas such as offices, bathrooms, shared or common work areas, and shared work surfaces.

In addition, the potentially exposed employee should self-monitor for symptoms of COVID-19 under the supervision of the employer’s occupational health program, and wear a face mask at all times in the workplace for fourteen (14) days following the date of last exposure (or potential exposure). In the event of face mask supply shortages, the employer may approve an employee-supplied cloth face covering. The employee should also practice social distancing, as his/her work duties permit, including maintaining a six-foot distance between the employee and others.

Note that this interim guidance does not change the CDC’s previous guidance as to non-critical infrastructure workers. Non-critical infrastructure workers are advised to leave work and quarantine for a period of 14 days if exposed to COVID-19. For more information on handling a positive diagnosis in a non-essential workplace, see our prior post.

What If an Employee Becomes Sick During the Work Day?

In the event an employee is no longer asymptomatic or becomes sick during the workday, employers should send the affected employee home immediately, and work surfaces should be promptly cleaned and disinfected. Prior to sending the ill employee home, if possible, the employer should compile information regarding any individual(s) the employee may have had close contact (e.g. within six feet) within the prior two days. The employer should also notify those who had close contact with the ill employee while the employee had symptoms and two days prior to the symptoms appearing in order to allow for additional monitoring and/or precautions to be established.  

Additional Considerations for Employers

Although this interim guidance has been framed as a mechanism to allow for continuity of operations, employers should continue to be aware of their obligations and responsibilities under applicable federal and state laws, including employers’ obligations under the Families First Coronavirus Response Act’s paid sick leave provisions.