The Centers for Disease Control and Prevention (CDC) issued new interim guidance on November 16, revising the approach businesses should take when determining whether critical infrastructure workers who have been exposed to persons with suspected or confirmed coronavirus (COVID-19) may continue to work in person. Under this new guidance, all exposed critical infrastructure workers who are asymptomatic should quarantine for 14 days unless, as a “last resort,” the individual needs to work in person to prevent closure of a critical infrastructure facility or cessation of operations.
The revised guidance is a significant departure from prior CDC guidance which provided that, to ensure continuity of operations of essential functions, asymptomatic critical infrastructure workers could generally be permitted to continue work following potential exposure to COVID-19, so long as they followed additional precautions.
Ultimately, the CDC guidance is just that – guidance. Employers should continue to follow state and local requirements regarding critical infrastructure workers. But given many states’ general reliance on or specific adoption of CDC guidance, this change could have a significant impact on the workplace.
Under the CDC’s new guidance, employers may permit asymptomatic critical infrastructure workers who have been exposed to a person with suspected or confirmed COVID-19 to continue to work only where necessary to ensure the continuity of essential functions. The guidance makes clear that 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.” If a worker tests positive or begins displaying symptoms, the guidance dictates, as it did previously, that the worker should quarantine for 14 days while seeking appropriate medical attention and testing.
The guidance encourages employers to work with public health officials when an exposed critical infrastructure worker must continue to work so as to ensure that the company’s employees and the general public are protected. The guidance also suggests that employers follow the risk mitigation precautions outlined in the CDC’s previous guidance. These include (1) at home symptom screening; (2) conducting an on-site symptom assessment; (3) monitoring the worker for symptoms; (4) requiring the worker to wear a cloth mask and practice social distancing; and (5) cleaning and disinfecting all workspaces and shared equipment.
The guidance does not explicitly define the term “critical infrastructure worker.” Rather, it references a list of “Essential Critical Infrastructure Workers” developed by the Cybersecurity and Infrastructure Security Agency (CISA) in collaboration with other federal agencies and the private sector. This list, initially issued in March 2020 and updated on August 18, 2020, has been widely referenced by state and local authorities when designating “critical infrastructure” workers and/or essential workers. The list provides that essential critical infrastructure workers are not only those who operate critical infrastructure, but also those who “support” that operation.
While the new CDC guidance represents a substantial change from CDC’s earlier guidance, employers should remember that state and local requirements still control. Some states already have implemented requirements more restrictive than the CDC’s previous guidance, mandating that essential personnel only continue to work if, for example: they test negative at least once; local authorities are consulted; the individual is the only person who can perform their job; and/or there is a critical-staff shortage that requires their in-person work.
However, in states that have issued orders and guidance instructing or recommending that employers follow CDC guidance, employers relying on that guidance should consider reevaluating their approach to returning exposed critical infrastructure workers to the workplace, as failure to comply with the new guidance could create legal risk.
In the event of litigation alleging failure to comply with appropriate health and safety protocols, employers will want to show that they have followed all CDC infection control recommendations. To mitigate risk, businesses should evaluate whether their workforce is covered by the CISA critical infrastructure guidance and if so, determine how many and which workers must be present at a facility to prevent a shutdown of operations. Moreover, after potential exposures, employers should analyze the totality of the circumstances on a case-by-case basis to determine whether returning workers for in-person operations would be consistent with CDC’s new limitations. Employers should also monitor state and local requirements for locations where they operate to determine whether they adopt the new CDC guidance.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
Sharing insights and resources that help our clients prepare for and address evolving issues is a hallmark of Morgan Lewis. To that end, we maintain a resource center with access to tools and perspectives on timely topics driven by current events such as the global public health crisis, economic uncertainty, and geopolitical dynamics. Find resources on how to cope with the globe’s ever-changing business, social, and political landscape at Navigating the NEXT. and Coronavirus COVID-19 to stay up to date on developments as they unfold. Subscribe now if you would like to receive a digest of new updates to these resources.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Sharon Masling
Jonathan Snare
Kaiser Chowdhry
Alana Genderson
Jocelyn Cuttino
New York
Daniel Kadish