CDC’s Expansion Of “Close Contact” Definition Spells Trouble For Employers

Jackson Lewis P.C.
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On Wednesday, October 21, 2020, the CDC issued new guidance expanding the definition of a “close contact” from someone who has been within 6 feet of a COVID-19 positive person for 15 minutes or more to:

“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.”

This shift in definition appears to be based on a case study of a single prison guard in Vermont who contracted COVID-19 after interacting within 6 feet of 6 inmates who subsequently tested positive for COVID-19. In an article also published on the CDC’s website on Wednesday, the authors noted that the prison guard had 22 interactions with the 6 inmates for a cumulative 17 minutes over a 24-hour period. Seven days later, the prison guard began experiencing COVID-19 symptoms and 5 days after that he tested positive for COVID-19. The inmates had worn microfiber cloth masks during most interactions with the prison guard that occurred outside a cell but had several interactions with the prison guard without masks. The prison guard wore a microfiber cloth mask, gown, and goggles for eye protection in all his interactions. He also wore gloves during most interactions.

The prison guard anecdotally reported no other known close contact exposures to persons with COVID-19 outside work and no travel outside Vermont during the 14 days preceding illness onset. The article also notes that the community transmission was low at the time, with just 20 cases per 100,000 persons. This prison guard was only 1 out of 13 employees who were exposed to the infectious inmates who tested positive for COVID-19 despite not meeting the definition of having close contact.

What this article does not mention is whether the prison guard and inmates, were wearing their cloth masks appropriately, covering their mouths and noses. Given the vast number of people who do not cover their noses or otherwise wear their masks as chin accessories, there are potential flaws with this “study.” The article also does not note any significance as to whether being exposed to 6 different persons with the virus, who may have varying levels of contagiousness, may have also played a factor. Nor does it note whether the prison guard had any underlying health issues making him particularly vulnerable to transmission of the virus. Moreover, this study lacks an appropriate sample size from which to draw a conclusion about close contacts and this situation could be an outlier.

Notwithstanding these concerns, the CDC is using this information to expand the definition of “close contact.” This much broader definition of “close contact” will likely turn contact tracing on its head, as it will greatly expand the universe of who may be considered a “close contact,” complicating an already impossible task.

This new definition will certainly impact safety and health compliance in the workplace and may have a significant economic impact on businesses. Will this new guidance keep people at home instead of dining out? Will customers continue to shop in brick and mortar stores? Will people be willing use public transportation? These industries are going to face new challenges in providing a safe environment for employees and the public alike. And, for those employers who thought they were safe from OSHA enforcement by following CDC guidance, this new definition is a game changer. OSHA may now use broad definition of “close contact” to support its position that many more COVID-19 cases are “work-related” than previously thought, potentially triggering OSHA recording and reporting requirements. This ever-shifting guidance on COVID-19 continues to plague employers trying to keep their workplaces safe and further demonstrates why OSHA should not be trying to regulate what is actually a public health crisis.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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