On April 8, 2020, the Centers for Disease Control and Prevention (CDC) released updated interim guidance (Guidance) advising that asymptomatic critical infrastructure workers may be permitted to continue to work onsite despite exposure to COVID-19, if certain precautions are taken. The Guidance applies to critical infrastructure workers, which CDC defines as including personnel in 16 sectors that the Department of Homeland Security (DHS) has deemed essential to the nation’s COVID-19 response, including law enforcement, hazardous material response, janitorial and other custodial staff, and “workers—including contracted vendors—in food and agriculture, critical manufacturing, informational technology, transportation, energy and government facilities.(Healthcare professionals are also critical infrastructure workers, but CDC has issued separate guidance applicable to them.) The Guidance provides useful advice for an employer to consider if it decides to allow asymptomatic but potentially exposed individuals to remain on the worksite. Employers need to carefully consider whether to allow those individuals to remain on the worksite in light of the new Guidance.

Key provisions of the Guidance

In addition to measures CDC has previously recommended for all workplaces (see here), the Guidance recommends certain precautions when an asymptomatic critical infrastructure worker with potential exposure to COVID-19 is permitted to remain in the workplace. “Potential exposure” is defined as “a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19,” including exposure during the “48 hours before the individual became symptomatic.” The precautions are:

  • Pre-screen: “Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.”
  • Regular monitoring: “As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.”
  • Masks: “The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.”
  • Social distance: “The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.”
  • Disinfect and clean work spaces: “Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely, and consider “increas[ing] the frequency of cleaning commonly touched surfaces.”
  • Further considerations: CDC also identified “additional considerations” to include:
    • “pilot testing the use of face masks to ensure they do not interfere with work assignments”;
    • staggering work breaks;
    • preventing employees from congregating in breakrooms and from sharing food, utensils, headsets, or other objects “that are near mouth or nose”; and
    • “increas[ing] air exchanges” in the building.
  • If sickness occurs: The Guidance is premised on the notion that the potentially exposed employee is not exhibiting symptoms. If the potentially exposed employee becomes ill:
    • he or she “should be sent home immediately.”
    • surfaces in the employee’s workspace “should be cleaned and disinfected.”
    • the employer should determine who had contact with the employee once the employee became symptomatic, and 2 days prior to the onset of symptoms. Anyone with close contact (within 6 feet) of the employee during this time period should be considered exposed to COVID-19.

Observations

CDC’s advice should not be viewed as a mandate to keep potentially exposed critical infrastructure workers on the job, but instead, as opening up that possibility and providing guidance for employers to follow if such workers remain on the job. Note that except for critical infrastructure workers covered by the new Guidance, CDC is still recommending generally that people who have had close contact with an infected person stay home for 14 days.

Thus, employers in critical infrastructure sectors will need to balance several considerations when determining whether potentially exposed workers should be allowed to work onsite, following the new CDC Guidance. The employer should determine, among other things, whether the potentially exposed worker can effectively telework in at least some capacity for a 14-day quarantine period — if so, the employer should strongly consider instructing the employee to work remotely. The employer should also consider whether the benefit of having the worker onsite (rather than quarantining for 14 days after the exposure) is worth the risk, and this analysis will differ depending on a number of factors, including the employee’s role, the employer’s staffing needs, and the nature of the worksite and workforce.

Employers should also consider practical issues raised by complying with the new Guidance. For example, medical screenings of potentially exposed individuals will need to be conducted in a way that preserves the individual’s confidentiality. Requiring only potentially exposed workers to wear masks or face coverings may also raise privacy issues for those workers because a mask singles them out. In addition, the presence of potentially exposed workers could cause co-workers to be concerned about the safety of the workplace. And requiring workers to wear face masks may trigger questions concerning what types of masks are appropriate and whether exceptions will be considered.

Regarding the use of masks in the workplace, government guidance is evolving. CDC has recommended in other guidance that members of the public wear cloth face coverings in certain public settings such as grocery stores and pharmacies where social distancing is difficult to maintain, “especially in areas of significant community-based transmission.” But CDC’s COVID-19 Interim Guidance for Businesses and Employers has not yet recommended that employees wear masks or face coverings in the workplace as a general matter.

Within the last week, however, the Occupational Health and Safety Administration (OSHA) has issued guidance recommending that employers in the retail and package delivery industries “[a]llow workers to wear masks” (see our recent post about OSHA’s industry-specific guidance). And some local jurisdictions are starting to require essential businesses to provide face coverings to employees or allow employees to wear their own (see our post about the Los Angeles ordinance here). All employers need to stay current on the laws and guidance applicable to their own workplaces on this issue.

For further information about the latest COVID-19 related laws and guidance affecting your workplace, please consult an author of this article or the Hogan Lovells attorney with whom you regularly work.