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.
In yet another significant move, on April 8, 2020, the U.S. Centers for Disease Control and Prevention (CDC) published additional guidance for employers regarding safety practices for “critical infrastructure workers” who may have been exposed to a person with a suspected or confirmed case of COVID-19.
Since the onset of COVID-19, many employers are requiring employees who have been exposed, or potentially exposed, to infected persons to remain away from work for 14 days – the CDC’s stated incubation period. As a result, many employers, including those that perform essential functions, were hamstrung operationally because portions of their workforce remained self-quarantined for two weeks.
New Guidance for Critical Infrastructure Employers
The new guidelines help ease the strain on the country’s critical sectors. The purpose of the guidance is to ensure the continued operation of critical infrastructure. The CDC is now advising that critical infrastructure employees who have been exposed to the virus can continue to work, provided they remain asymptomatic. In order to permit exposed employees to continue to work, the CDC advises that employers should, among other things, adhere to the following practices prior to and during work:
- measuring temperature before employees enter the facility;
- regular monitoring of asymptomatic employees;
- having affected employees wearing a mask/face covering in the workplace for 14 days after exposure (employer-issued or employee-supplied);
- having employees maintain social distancing (six feet apart), as work duties permit; and
- routinely disinfecting work spaces.
Who is Critical?
As noted above, the new guidance does not apply to all employers that continue to operate through the pandemic. The CDC has highlighted that the new guidance applies to the following critical infrastructure sector personnel:
- Federal, state, and local law enforcement;
- 911 call center employees;
- Fusion center employees;
- Hazardous material responders from government and the private sector;
- Janitorial and other custodial staff; and
- Workers – including contracted vendors – in food and agriculture, critical manufacturing, information technology, transportation, energy and government facilities.
This list is not exhaustive, however, and leaves much open for interpretation. In an effort to provide further clarity, the CDC directs employers to the U.S. Department of Homeland Security’s Critical Infrastructure Security Agency (CISA) website for further guidance on sectors and employees that are considered critical.
Interplay with Shelter in Place Orders
In connection with their shelter in place orders, many states and localities have adopted the CISA’s guidelines. Therefore, employers should pay close attention to whether the type of work they perform falls within a CISA critical infrastructure sector and, similarly, whether the employees who continue to report to work are, in fact, essential. Employers subject to a stay at home order that does not rely on the CISA framework should be careful to evaluate the nature of their operations under the particular order at issue.
The CDC’s new guidelines can help critical infrastructure employers as they continue to navigate the most appropriate ways to maintain operations during this difficult time. So long as critical employers implement the above-noted recommendations, essential workers who have been exposed, or potentially exposed, may continue working if those workers are not sick. At the end of the day, however, critical infrastructure employers may choose to follow more conservative protocols with their workforce.