As the COVID-19 pandemic continues into the winter months, the legal landscape for employers trying to navigate COVID related requirements grows ever more complicated and challenging. Employers are faced with a long list of COVID related issues requiring their action. How should the employer screen employees? What happens when an employee tests positive after being present in the workplace? When must employees quarantine if they have had close contact with a person who has tested positive and for how long? What is close contact?
Due to a patchwork of federal, state and local laws and guidelines, the answers to these and other COVID related employer questions are location specific. CDC guidelines provide some answers, but the degree to which the guidelines are binding varies from jurisdiction to jurisdiction. To complicate matters, many states, counties, state and local health departments and other agencies have implemented various laws, executive orders, rules and non-binding guidance. All of this is constantly changing for a variety of reasons including the fluctuating spread of COVID-19, evolving scientific thinking, and legal challenges.
In Michigan, for instance, after a Michigan Supreme Court decision invalidated executive orders, the Governor signed new legislation on October 22, 2020 requiring employees to remain home if diagnosed with COVID-19, experiencing COVID-19 symptoms or in close contact with a person who has been diagnosed with COVID-19. In addition to the new law, the Michigan Occupational Safety and Health Administration (MIOSHA) has issued COVID-related rules requiring employers to implement a plan that is consistent with CDC Guidelines, which do not align precisely with the new Michigan statute.
As cases increase across the country, many employers are facing staffing constraints due to quarantine requirements for employees who test positive, or are in “close contact” with a person who tests positive. These attendance challenges will only increase as we enter cold and flu season, with similar symptoms, and the federal government likely reenacts supplemental unemployment compensation. In such circumstances, it is important to be precise regarding the circumstances, and amount of time, when an employee must remain off work. Below, we have analyzed several potential employer questions under Michigan law.
Question 1: Can an employee who has been in close contact with someone who has tested positive for COVID-19 return to work sooner than otherwise required if the employee tests negative?
In Michigan, no. While under the prior Michigan executive orders and CDC guidelines, a testing return to work strategy was an option, under the new Michigan statute, a negative test will not return the employee to work sooner. Under the Act, employees who have been in close contact with an individual who tests positive for COVID-19 or with an individual who displays the principal symptoms of COVID-19 may only return to work under the following circumstances:
- Fourteen days have passed since the employee last had close contact with the individual; or
- The individual with whom the employee had close contact receives a medical determination that they did not have COVID-19 at the time of the close contact with the employee
The statute does not provide for any other circumstances under which the exposed employee can return to work. It specifically does not include a shortening of the required time if the employee tests negative for COVID-19.
In addition, employers should be aware that the CDC has changed its guidelines and no longer supports accelerating an employee’s return to work through testing. Under the current guidelines, generally “a testing strategy is no longer recommended…”
Question 2: Are Michigan employers required to follow CDC guidance?
Short answer: Yes, Michigan employers are required to follow CDC guidance.
While the new Michigan legislation that sets requirements for employers does not refer to CDC guidance, MIOSHA rules do. The rule states:
“The employer shall develop and implement a written COVID-19 preparedness and response plan, consistent with the current guidance for COVID-19 from the U.S. Centers for Disease Control and Prevention (CDC) and recommendations in ‘Guidance on Preparing Workplaces for COVID-19’ developed by the Occupational Health and Safety Administration (OSHA).”
Because the MIOSHA rule states that employers shall develop a plan that is consistent with CDC guidance, Michigan employers are required to follow CDC guidance. If they fail to do so, Michigan employers risk losing the indemnity provided under Michigan law connected to compliance.
Question 3: What is “close contact?” Has the definition of close contact changed?
Short answer: In Michigan, “Close Contact” is a cumulative total of 15 minutes or more over a 24-hour period.
- The CDC has changed it definition from “15 consecutive minutes”, to the following: “Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”
The CDC explains further in a footnote: “Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.”
- Under the new Michigan statute, close contact is defined as “within approximately 6 feet of an individual for 15 minutes or longer.” This does not directly address whether the 15 minutes must be consecutive or combined within a 24-hour period.
- Similarly, MIOSHA defines close contact as “within 6 feet of an infected person for at least 15 minutes starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to specimen collection) until the time the person is isolated.” Again, this does not directly address whether the 15 minutes must be consecutive or combined within a 24-hour period.
- Because the MIOSHA rule states that employers must develop a plan that is consistent with CDC guidelines, and the CDC definition of close contact does not directly conflict with the Michigan definition in either the new legislation or the MIOSHA rule (they can be read to be consistent with each other), employers should use the CDC definition.
Question 4: If the employee is wearing a mask at all times, are they ever in “close contact?”
Short answer: Yes. Whether an employee is wearing a mask does not factor into the analysis of “close contact.”
The CDC guidelines definition of “close contact” states that the definition of close contact is still applicable even if the employee is wearing a mask.
As the pandemic continues, employers will likely face these and other similar questions with increasing frequency. Employers should tread carefully and consult with legal counsel due to the complicated issues that arise and detailed analysis of intersecting legal obligations that is required.