On April 8, 2020, the Centers for Disease Control and Prevention (CDC) issued Interim Guidance for implementing safety practices for critical infrastructure workers (also frequently referred to as essential employees) who may have been exposed to COVID-19. Find guidance here.

The Interim Guidance appears to relax previous guidance that suggested employers should require potentially exposed employees to self-quarantine at home for fourteen (14) days. The CDC advises that these workers may be permitted to continue work following potential exposure provided that they remain asymptomatic and the employer monitors these workers and implements additional precautions in the workplace.

The CDC’s guidance defines “potential exposure” as either household or close contact with an individual with confirmed or suspected COVID-19. The timeframe for this contact includes the 48 hours preceding the individual’s first sign of symptoms.

The Guidance states that, prior to and during the work shift for these workers, employers should:

  • Pre-screen and measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility;

  • Regularly Monitor the employee’s temperature and symptoms (and have the employee self-monitor under the supervision of their employer’s occupational health program);

  • Have the employee wear a facemask at all times while in the workplace for 14 days after the last exposure;

  • Have the employee social distance and maintain a 6 feet perimeter as work duties permit in the workplace;

  • Clean and disinfect all areas such as offices, bathrooms, common areas and shared electronic equipment routinely; and

  • Work with facility maintenance to increase air exchanges in the building.

Per the CDC Interim Guidance, if the employee becomes sick during the day, the employee should be sent home immediately and all surfaces in the employee’s workplaces should be cleaned and disinfected. Employers should also compile information on all persons who have had contact with the ill employee during the time the employee had symptoms as well as the two (2) days prior to the first sign of symptoms. Employees with close contact – within six feet of the sick employee – are considered to have been “exposed.”

While the CDC’s new Interim Guidance provides some helpful guidelines for employers, employers with essential workforces must still carefully consider and determine the processes and methods that best ensure the health and safety of their employees who remain in the workplace, along with how to respond to confirmed or suspected cases within the workforce.

Impacts of Wisconsin’s Updated Safer at Home Order on CDC Interim Guidance

Since we completed our draft of this article, the Secretary-designee for the Wisconsin Department of Health Services, Andrea Palm, issued an updated Executive Order on April 16, 2020 that extended Governor Evers’ “Safer at Home Order” until May 26, 2020. https://evers.wi.gov/Documents/COVID19/EMO28-SaferAtHome.pdf Per Emergency Order #28, essential business and operations that stay open during the Order need to adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with an individual with a confirmed diagnosis of COVID-19. Therefore, in order to be in compliance with Wisconsin’s Safer at Home Order, employers will need to prohibit employees who have been in contact with anyone who has tested positive for COVID-19 from entering the workplace (e.g., require them to self-quarantine at home for 14 days).

OSHA Enforcement Guidance on Recording of COVID-19 Exposure Cases

In an earlier HR SmartPractice newsletter, we had informed you of OSHA’s position on the recording of COVID-19 exposures on your OSHA 300 logs. On April 10, 2020, OSHA partially retracted its initial instructions to employers, which had required employers to evaluate employees who contracted COVID‑19 as potential recordable occupational illnesses under OSHA’s injury/illness recordkeeping rules. According to its new “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID‑19),” (https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19), in most cases, OSHA will not enforce its recordkeeping rules that otherwise would have required all employers to make determinations as to whether “workers who contacted COVID‑19 did so due to exposures at work.” However, it is important to note, OSHA did not retract its basic position that COVID‑19 “is a recordable illness,” which must be recorded as a work-related illness on OSHA 300 logs (or their equivalent) if: (1) the employee has a “confirmed case of COVID‑19” based on at least one positive test for the virus; (2) the COVID‑19 is “work-related,” per 29 CFR § 1904.5, i.e., the disease is contracted from exposure in the work environment; and (3) the case meets recording criteria, including a significant illness diagnosed by a healthcare professional or days away from work. Instead, OSHA recognized that in areas with community-spread of the coronavirus, most employers “may have difficulty” making determinations that COVID‑19 cases were due to exposures at work, so those employers would no longer have to affirmatively investigate whether the employee’s COVID‑19-positive diagnosis was work-related in order to avoid the risk of an OSHA enforcement action for a recordkeeping violation.

OSHA’s “enforcement discretion” towards an employer’s obligation to record COVID‑19 cases has several important caveats:

  • First, healthcare emergency response organizations, and correctional institutions continue to be required to determine whether an employee’s COVID‑19 diagnosis was due to workplace exposure.

  • Second, OSHA’s enforcement discretion apparently is limited to areas where there is community transmission of the virus.

  • Third, all employers continue to be required to determine that an employee’s COVID‑19 diagnosis is a work-related case, if:

  1. “There is objective evidence that a COVID‑19 case may be work related [such as if] a number of cases develop[] among workers who work closely together without an alternative explanation” and

  2. The “objective evidence” is “reasonably available to the employer . . . [such as if] information [is] given to the employer by employees” or the employer learns information in the “ordinary course of managing its business and employees.”

When recording cases, keep in mind confidentiality concerns. Typically, when recording illnesses/injuries on your OSHA logs, you record the employee’s name. There is an exception to that practice. If a COVID-19 case is recorded, the employer must keep the employee’s name confidential “if an employee voluntarily requests” that the employer do so.

What about your obligation to report serious and fatal illnesses to OSHA? Although OSHA’s Recording Guidance does not expressly address OSHA’s requirement to report serious and fatal illnesses to OSHA, because the reporting requirement is triggered by hospitalizations or fatalities due to a “work-related incident,” if, in reliance on the Recording Guidance, an employer does not determine that the illness is a work-related case, it follows that the case also would not be a reportable case.

In its Recording Guidance, OSHA stated that it was granting this enforcement discretion in order to allow employers more time to focus on “good hygiene practices” and otherwise mitigating the effects of COVID‑19 in the workplace. This Recording Guidance supplements OSHA’s general guidance on COVID‑19 preparedness in the workplace and OSHA COVID-19 enforcement guidances issued to address certain aspects of its respiratory protection rules, as well as OSHA’s new workplace poster (https://www.osha.gov/Publications/OSHA3994.pdf), entitled “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.”

Please do not hesitate to contact a member of our Employment Team if you have any questions concerning the CDC and OSHA Guidance or any other COVID-19 related issue. We stand by ready to assist.

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Written By:
Attorney Jodi Labs

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