Federal Health and Safety Orders — Centers for Disease Control and Prevention Guidance

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CENTERS FOR DISEASE CONTROL AND PREVENTION

Return-to-Work Guidelines

The CDC recently issued interim safety guidelines for critical infrastructure workers who may have been exposed to a person with suspected or confirmed COVID-19. Previous CDC recommendations directed exposed employees to self-quarantine for 14 days to ensure that they not expose others.

To ensure continuity of operations of essential functions, the CDC advises that critical infrastructure workers be permitted to continue working following potential exposure to COVID-19, as long as they do not exhibit symptoms and precautions are taken to protect them in the community.

On May 14, the CDC issued general guidance for six types of commerce. Each is a one-page "decision tree," or flow chart of recommended measures to have in place before reopening. They are:

1. Workplaces https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/workplace-decision-tree.pdf
2. Schools https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/Schools-Decision-Tree.pdf
3. Youth programs https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/Camps-Decision-Tree.pdf
4. Child care centers https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/Childcare-Decision-Tree.pdf
5. Mass transit systems https://www.cdc.gov/coronavirus/2019-ncov/community/pdf/MassTransit-DecisionTree.pdf
6. Restaurants and bars https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/restaurants-and-bars-decision-tree.pdf

The advisory states that businesses must comply with all state and local stay-at-home orders, and doesn't set a timeline for reopening. All businesses should be prepared to protect employees at high risk for exposure, including workers older than 65 and those with underlying medical conditions. The guidance does not define what such protection would entail, although it could include allowing vulnerable workers to continue to telework if possible.

The CDC guidance focuses on the health and safety of all workers and visitors to work sites across all establishments:

• Promote good hygiene, including hand-washing and the wearing face masks.
• Intensify efforts to clean/sanitize/disinfect and promote good ventilation,
• Encourage social distancing.
• Train all employees in health and safety protocols.

The CDC recommends monitoring employee health across all establishments. That includes:

1. Develop procedures to check for symptoms "daily upon arrival, as needed."
2. Encourage anyone who is sick to stay home.
3. Plan for illness among employees or their children.
4. Regularly monitor developments and communicate with local authorities and employees.
5. Monitor employee absences and have flexible leave policies.

The guidance provides examples of how to encourage social distancing and enhance spacing between employees. They include physical barriers, revising workspace layouts, teleworking, closing or limiting access to communal areas, staggering shifts and breaks and limiting large events. The social distancing recommendations are "as feasible," and the CDC acknowledges that some businesses may not be able to fully accomplish this best practice.

The new CDC advisory offers similar guidance to that given by the state of California for specified industries. See the section below, Return-to-Work Considerations, and the subsection Gov. Newsom's Plan to Reopen the State. Businesses should be familiar with all federal and state guidelines, and develop return-to-work plans that incorporate, as feasible, guidance from federal, state and local authorities.

Critical Infrastructure Workers

The CDC says “critical infrastructure sector” workers include:

• federal, state and local law enforcement
• employees of 911 call centers
• government and private sector hazardous material responders
• janitorial and other custodial staff
• workers –– including contracted vendors –– in food and agriculture, critical manufacturing, information technology, transportation, energy and government facilities.

The list isn’t exhaustive and leaves much to interpretation.

Practice Tip: If your workforce is an essential business as defined by Gov. Newsom’s Executive Order N-33-20 as part of the critical infrastructure sector, the CDC guidelines probably apply to you.

Potential Exposure

The CDC defines potential exposure as a household contact or having close contact (within 6 feet) with an individual with confirmed or suspected COVID-19. Also, if you had contact with a potentially exposed individual within 48 hours of when that person experienced symptoms, you were potentially exposed.

Screening and Monitoring Exposed Critical Infrastructure Workers

Critical infrastructure workers who have been exposed to the virus but are not showing symptoms should follow these practices before and during their work shift:

• Prescreen: The employer takes the employee’s temperature and assesses symptoms before allowing him or her to start work. Ideally, the temperature check should occur before the worker enters the facility.
• Monitor Regularly: After passing the temperature and symptoms check, the employee should self-monitor under supervision of the employer’s occupational health program.
• Wear a Mask: While in the workplace, the employee should wear a face mask for 14 days after the last exposure. Employers may issue face masks or approve employee-supplied cloth face coverings in the event of shortages.
• Maintain Social Distance: The employee should remain 6 feet away from other workers as work duties permit.
• Clean and Disinfect Workspaces Routinely: Include all areas –– offices, bathrooms, common areas, shared electronic equipment.

If the employee becomes sick during the day, he or she should be sent home immediately. The workspace should be cleaned and disinfected, and information should be collected about who had contact with the ill worker when the employee had symptoms, and two days before.

We will monitor the CDC, and update this guide when state, county or city orders are issued.

Practice Tip: Because much remains unknown about how COVID-19 is transmitted and when infected individuals are most likely to infect others, employers should consider sending employees home if they are suspected of having been exposed to COVID-19, and advise them to self-quarantine to minimize the risk to others in the workplace.

CDC, State and Local Guidelines for Face Masks

The CDC recommends the use of nonmedical masks or “cloth face coverings” to help stem the spread of COVID-19. It also recommends that cloth face coverings be worn in public places where social distancing measures are difficult to maintain (for example, grocery stores and pharmacies). Cloth face coverings are for nonmedical settings –– they are not surgical masks or N95 respirators.

On April 1, the California Department of Health offered additional guidance about face coverings. The department made clear that if a city or county implements policies promoting the use of face coverings, it should be mindful not to increase the demand for medical-grade respirators, such as N95 and surgical masks, which are in short supply and unnecessary for nonprofessionals.

In response to the department’s guidance, the county of San Diego issued an addendum to its health and safety order. As of April 4, all employees who may have contact with the public in a grocery store, pharmacy or drug store, convenience store, restaurant or other business establishment that serves food must wear a cloth face covering or face mask.

Riverside County followed with a broader order requiring all persons, including essential workers, to wear face coverings. The order specifies that face coverings may include scarves made of dense fabric, bandanas, neck gaiters or other fabric designs. In compliance with guidance from the Department of Public Health, the order specifically discourages individuals, including essential workers, from using personal protective equipment, including N95 masks, for nonmedical reasons.

The city of Los Angeles also issued an executive order mandating that essential workers wear face coverings, and requiring employers to provide them to their employees. Employers must allow essential workers to wash their hands every 30 minutes. The Los Angeles order also requires individuals entering into essential businesses such as grocery stores to wear face coverings for worker safety.

We anticipate that other counties will recommend the use of face coverings, and the recommendations could become mandates as the number of confirmed coronavirus cases increases.

Employers deemed essential should review orders often to ensure that their employees comply with county mandates about face coverings and abide by the CDC guidelines in their scope of work.

For further CDC COVID-19 information see https://www.cdc.gov/coronavirus/2019-ncov/index.html.

CDC Guidance on Testing Non-Health Care Employees for COVID-19

Many employers in areas where there is moderate to high COVID-19 transmission and at workplaces where employees are in close contact with each other or the public have turned to testing their employees in certain circumstances. The employer testing can be part of the businesses strategy to keep employees safe in the workplace, but employer testing can provide more immediate results through a contract with a testing agency and allow exposed but asymptomatic employees to return to the workplace more quickly after testing.

To help employers with an employee testing program the CDC recently issued guidance to non-healthcare employers on testing their employees for COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcare-workplaces.html#strategy.

The CDC guidance is not intended to supersede any federal, state, local, territorial, or tribal health and safety rules or regulations and reminds employers that in implementing a testing program they must adhere to EEOC guidelines regarding permissible testing policies and procedures. In California this means testing policies cannot single out older employees, employees with co-morbidities or certain ethnic groups believed to be more at risk, employee test results must be kept in a confidential medical file and cannot be disclosed to anyone who doesn't have a need to know. Finally, decisions made about a workers' employment based on testing results must be consistently applied to all employees.

Employers who are testing employees should pay for the testing and establish procedures for rapid notification of results and procedures for self isolation and restrictions on workplace access.

The CDC describes four testing scenarios where an employer might test and issues guidance related to each one:

• Testing employees with COVID-19 symptoms. If an employee exhibits symptoms, including an elevated temperature during a temperature check, they should be immediately sent for testing and instructed to self isolate pending results. Anyone who may have been exposed by the symptomatic employee should be tested and instructed to self isolate pending results.
• Testing employees with suspected exposure.Employees with a suspected exposure should be tested and instructed to self isolate. The CDC instructs that testing of exposed employees should be done several days after exposure because the virus may not be immediately detectable. The employee should remain quarantined until test results are received.
• Testing all employees each shift or in regular intervals. A mass testing approach may be appropriate for businesses with many employees who are unable to physically distance or consistently wear face coverings or in areas that are considered at moderate or high risk of virus transmission or where medical facilities are lacking. Before employees start mass testing, the CDC encourages employers to "have a plan in place for how they will modify operations based on test results and manage a higher risk of false positive results in a low prevalence population."
• Testing once infected employees before they return to work. Employers can choose to test once infected employees prior to returning them to work but the CDC seems to caution that this approach might lead to false positives where the virus might not have completely left the body but the individual is no longer infected. Instead it suggests employers could allow employees to return following a certain amount of time following resolution of symptoms - typically 7-10 days. See https://www.cdc.gov/coronavirus/2019-ncov/community/strategy-discontinue-isolation.html. The CDC also suggests infected employees who didn't develop symptoms might be returned to work after 10-14 days of self isolation. See https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html. The EEOC is clear that employers can require once infected employees to present a doctors note prior to returning to work.

Employers who experience multiple possible exposures among the workforce are beginning to turn to employer provided testing as the coronavirus pandemic rages on and, in many places, appear to be surging. In most cases employees who have a suspected exposure are not covered by the FFCRA Emergency Sick Leave unless they bring a doctor's note recommending quarantine and employees and employers alike are interested in minimizing unpaid, lost time from work by establishing a testing program that can provide more rapid results then free testing clinics or the employee's physician can provide.

'Practice Tip:' Employers should keep in mind the importance of investigation to determine the likely cause of the COVID-19 infection. A timely investigation will assist employers in determining whether the employee was likely infected on the job and whether the illness must be recorded or reported to OSHA.

SEE ALSO

• Federal and California Worker Adjustment and Retraining Notification Acts
• State and Local Workplace Safety Orders

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