The U.S. Centers for Disease Control and Prevention (“CDC”) recently published updated guidance on the handling of critical infrastructure workers who may have been exposed to a person with a confirmed or suspected case of COVID-19. This updated guidance applies to critical infrastructure workers, as defined by the Cybersecurity and Infrastructure Security Agency (“CISA”). The CISA’s Advisory Memorandum on the identification of critical infrastructure workers, while similar, is not necessarily identical to the State of Illinois’ definition of an essential worker.
Under previous CDC guidance, which we previously summarized here, many critical infrastructure workers who may have been exposed to a person with a confirmed or suspected case of COVID-19 were told to stay at home and self-monitor for symptoms. The updated guidance is geared toward maintaining workforce continuity, provided that the following additional precautions are taken:
- Pre-screening: Employers should measure the employee’s temperature and assess symptoms prior to the employee starting work. The CDC further recommends that this occur before the employee enters the facility.
- Regular monitoring: The employee should self-monitor for the development of symptoms (fever at or over 100.4, coughing and/or shortness of breath).
- Wear a mask: The employee should wear a face mask while in the workplace for 14 days after the last exposure.
- Social distancing: The employee should maintain 6 feet of distance from others in the workplace to the extent work duties permit.
- Disinfect and clean workspaces: The employer should take additional steps to ensure that all areas are routinely cleaned and disinfected, including offices, bathrooms, common areas, and shared electronic equipment.
The updated guidance does not change the CDC’s recommendation that any employee who becomes sick during the workday should be sent home immediately.
In order to be sure that these guidelines apply, employers reviewing the CDC’s guidance should confirm whether they are covered by CISA's critical infrastructure guidance, if there is a concern that the business was deemed essential under a State “stay at home" order, but does not appear on the lists created by CISA. If your business is not a federally defined “critical infrastructure” business, your company should continue to follow prior recommendations.
We also recommend that employers carefully consider whether CDC’s updated guidance can be practically implemented. Many employers have been unable to implement screenings of employees using temperatures and may not find it feasible to now screen employees who need to have their temperature taken pre-shift. Mask availability is also a concern for many. Employers should also consider how to respond to employee concerns if employees who previously had been sent home are now back in the facility, but wearing masks.
If the CDC’s latest guidance is not a good fit for your operations or will now cause morale problems, whether you follow these guidelines in bringing employees back to work or continue to ask employees to stay home will not affect their eligibility for benefits under the Families First Coronavirus Response Act (“FFCRA”), so decisions about who should stay home should not create significant legal issues relating to employee leave rights. This guidance does not alter whether an employee who could come back to work under the CDC’s updated guidelines is eligible for FFCRA paid leave.
In other words, while we are confident that many employers will welcome the greater flexibility afforded to them under CDC guidelines, we also recognize that putting these guidelines into practice may not always be the right approach. The right approach for your workplace still largely involves the approach that lets your employees know that their safety is a priority.