Q. Have there been any changes to the CDC Guidance on testing?

A. Until late July, the CDC offered a test-based or symptom-based strategy to govern the timing of “discontinuing isolation” for a person known or suspected to be infected with COVID-19. In an abrupt change in guidance, the CDC announced a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. The CDC now recommends following only a modified symptom-based strategy, which means:

Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:

• • At least 10 days have passed since symptom onset and
  • At least 24 hours (changed from 72 hours) have passed since resolution of fever without the use of fever-reducing medications and
  • Other symptoms have improved. (changed to broaden the range of relevant symptoms beyond only respiratory symptoms)

For persons who never develop symptoms but return a positive result on an RT-PCR test for SARS-CoV-2 RNA (such as the widely-used Labcorp version of the infection test), isolation and other precautions can be discontinued 10 days after the date of that positive result.

Additionally: For patients with severe illness, isolation for up to 20 days after symptom onset may be warranted. Affected individuals are directed to “[c]onsider consultation with infection control experts.”

Going forward, CDC has indicated that the role of testing for discontinuing isolation or precautions should be relatively limited.

• Rapid result RT-PCR testing could be considered for discontinuing isolation for persons who are severely immunocompromised.
• For all others, a test-based strategy is no longer recommended except to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy outlined above.

What does this mean for employers?

• Employers May Need to Change Existing Policies. Many employers, reliant on previous CDC guidance, have implemented a protocol which adopts a test-based strategy, encouraging and conducting these tests before permitting employees to return to the workplace, whether symptoms were exhibited or not. Such employers may now need to revise their protocol. Moreover, certainty in CDC guidance from this point forward is not assured and the new guidance cautions that further revisions may be issued as additional information becomes available. While employers retain flexibility to revise workplace policies and procedures within the limits of applicable law, this latest revision serves as a reminder to communicate to employees, and include associated language as to any COVID-related protocol or policy emphasizing it is subject to change in the event of change in circumstances, including revised governmental guidance. Employers may also consider including links to the relevant CDC and public health agency web pages directly in the policies.

• CDC Guidance May Now Contradict Local Laws and Guidance. In a notable example of some of the mixed messages created by this interim guidance, on July 15, 2020, Virginia’s Department of Labor and Industry announced soon-to-be-effective mandatory return to work standards for all employers which expressly adopted a test-based strategy as a safe harbor for regulatory compliance. The CDC also recognized that its guidance, “may be adapted by state and local health departments to respond to rapidly changing local circumstances.” Accordingly, even where a state or local law does not mandate or permit an action covered by this guidance, state and local public health and occupational safety guidance is likely to prevail. Employers, in particular multi-state employers subject to a variety of local regulation, must evaluate the impact on varied locales and what governs those operations.

• Employers Must Strike a Balance in Return to Work and Other Protocols. Employers will need to consider how to adjust both return-to-work protocols and leave policies to ensure they are prepared both for previously infected employees who are prematurely seeking to return, and employees who may be unnecessarily resistant. This is a delicate balance that will vary by employer, by industry, and depending on the individual circumstances of each employee. Employers should bear in mind continued EEOC guidance regarding the types of questions and information that are and are not permissible to ask employees while they do so.

• CDC Guidance May Migrate Employers to More Efficient Return to Work Procedures. The CDC acknowledges that people could continue to test positive during the three-month period after infection even if no longer showing symptoms, although the CDC says it’s statistically less likely such people are able to infect others at that time. So, reduced reliance on testing may encourage employers to follow a symptom-based return-to-work process, relying on criteria that are potentially more predictive of the actual contagion risk posed by that employee. Such a process may also reduce medically unnecessary periods of employee absence and mitigate leave concerns for employees who have exhausted FFCRA and other applicable leave amounts.

• Risk Remains Present for Employers. It is unclear what this change in guidance will represent to businesses from a liability perspective. Several states have passed laws establishing a presumption that COVID-19 is a compensable illness under the state’s workers’ compensation act. Several states have provided qualified immunity for businesses in the COVID-19 context, in an attempt to protect against liability for negligence claims brought by third parties. Particularly where the new CDC guidance deviates from local public health guidance, it is unclear whether compliance with the CDC guidance will be found to represent compliance with the standard of care in every instance. Finally, aside from liability considerations, employers will need to be prepared for practical consequences to business operations if multiple employees are infected, particularly given possible risk of continued ability to spread the virus if employees begin to return to work earlier under a symptom-based strategy than in the text-based context.

Lingering Questions from CDC Guidance

• The CDC provides no explanation as to what “precautions” may be discontinued as a result of a negative test, other than isolation.
• The quarantine period following a close-contact exposure to an individual known or suspected to be infected with COVID-19 remains 14 days, which the CDC acknowledges could conflict with recommendations on when to discontinue quarantine for persons themselves actually known or suspected to be infected with COVID-19. The CDC recommends this 14-day quarantine period in the exposure context based on the time that available research indicates illness may take to develop. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected. It is unclear how that might work in practice if an employee is exposed, has symptoms, but takes no test to confirm or deny infection.