Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The CDC continues to issue updated guidance on how to maintain a safe workplace during the pandemic. On November 16, 2020, the CDC modified its guidance for “critical infrastructure” employers on whether they can permit asymptomatic workers to continue to work after exposure to an individual with a suspected or confirmed case of COVID-19.
Since the onset of the pandemic, the CDC has recommended and many, if not all, localities have required, that employees exposed to someone with COVID-19 must remain away from work (i.e., self-quarantine) for 14 days from the exposure. Some employers of “critical infrastructure workers,” however, have had a partial exemption to the self-quarantine requirement.
Under the critical infrastructure worker exemption, employees who have been exposed to the virus can continue to work, provided the worker remains asymptomatic and employers implement the following mitigation precautions:
- Encourage employees to screen for symptoms prior to reporting to work.
- Symptom screen employees, including temperature checks, upon their arrival at work.
- Regularly monitor employees for symptoms while at work.
- Require employees to wear face coverings while at work.
- As job duties permit, require employees to maintain social distance while at work.
- Routinely clean and disinfect the areas accessed by employees.
Under the CDC’s modified guidance, the above rules still apply, but they now carry a strong warning. Since COVID-19 can be spread by pre-symptomatic and asymptomatic individuals, and there has been a huge surge in transmission throughout the United States, the clarified CDC guidance now states:
Employers may consider allowing exposed and asymptomatic critical infrastructure workers to continue to work in select instances when it is necessary to preserve the function of critical infrastructure workplaces. This option should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.
According to the CDC, 14-day self-quarantine “is still the safest approach to limit the spread of COVID-19 and reduce the chance of an outbreak among the workforce.” Permitting potentially exposed employees to continue to work “carries considerable risk to other workers because many people with COVID-19 are asymptomatic but can still spread disease, and tests are imperfect,” the CDC said, emphasizing that use of exposed workers “should not be the first or most appropriate option” to ensure continued critical work.
Since continued use of workers exposed to the virus is an option of last resort, the CDC provided these suggestions for how employers can avoid utilizing this option:
- Identify and prioritize job functions essential for continuous operation.
- Cross train employees to ensure that multiple employees can perform critical functions even if key employees are absent.
- Reevaluate job functions to match critical functions among other equally skilled and available workers.
The CDC also recommended that employers work “with state, tribal, local, and territorial public health officials in managing the continuation of work in a way that best protects the health of their workers and the general public.” This recommendation falls in line with states, like California, that have instructed critical infrastructure employers to contact local health departments to determine if exposed asymptomatic workers can continue to work.
Importantly, the modified guidance focuses on harm to public health and safety. Potentially exposed/asymptomatic workers should continue to work only if the loss of their workplace contributions would result in “serious harm or danger to public health or safety.” Serious harm to a business’s ability to continue to operate is not, by itself, adequate justification.
With this modified guidance, the CDC has put the business community on notice that the critical infrastructure exemption applies only to businesses involved in or impacting public health and safety. Employers should closely review the U.S. Department of Homeland Security’s Critical Infrastructure Security Agency website to determine whether they fall within a qualifying critical sector definition and which of their employees are considered critical. Employers looking to operate under this exemption should also make sure they are aware of any state or local requirements and/or recommendations that may differ from the CDC guidance and comply with any additional or differing provisions. In light of the nuanced and changing rules that may apply, critical employers should consider consulting with counsel to ensure compliance.