On Tuesday May 19, the Centers for Disease Control and Prevention (CDC) released a 60-page document laying out guidelines for reopening the country as states and local governments continue to curb the rate of COVID-19 infections. Along with interim guidance for childcare programs, schools and day camps, restaurants and bars, and mass transit, the CDC provides detailed social distancing and safety protocols for employers—specifically those with workers at high risk for severe illness from COVID-19.
The CDC defines a “high-risk worker” as any individual over age 65, as well as those with underlying medical conditions, including, but not limited to, chronic lung disease, moderate to severe asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease that requires dialysis. As a practical matter, because this category is broad, and some employees may have underlying medical conditions of which employers are unaware, the CDC directives would appear to apply to almost every business.
The CDC cautions that its guidance is not a federal mandate. Instead, the document “sets forth a menu of safety measures, from which establishments may choose those that make sense for them in the context of their operations.” Specific industries may need to take more stringent safety precautions than the general guidelines. And, although we believe it prudent for a business to strive to adhere to all of the CDC recommendations (for employee relations reasons, as well as to mitigate legal risk), some of the recommendations are more forceful than others, with employers directed to follow certain protocols and merely urged to “consider” others. Nonetheless, many employers will need to comply with state and local rules that are more burdensome than the CDC recommendations.
The interim guidance is laid out in a series of three steps, reflecting different protocols as a business scales up its operations. These steps appear to correspond to the three phases in the White House’s Opening Up America Again plan, which suggests that states and local governments may ease business restrictions once they satisfy certain gating criteria concerning downward trends for infection rates, testing ability, and health care system capacity. Notably, most of the CDC’s employer-specific protocols apply in all three steps.
First, the CDC advises that employers should encourage workers at higher risk for severe illness due to COVID-19 to self-identify, but avoid making unnecessary medical inquiries or unilaterally excluding some workers from the workplace. This advice is consistent with prior EEOC guidance prohibiting employers from categorically restricting older workers from the workplace and cautioning against the unilateral exclusion of medically vulnerable employees.
The CDC also recommends that employers protect higher-risk employees by supporting and encouraging options to telework during all three steps of the scaling-up process, noting that during steps 1 and 2 higher-risk workers should shelter at home. When telework is not feasible, the CDC states that employers should consider offering higher-risk workers duties that minimize their contact with customers and other employees. However, consistent with EEOC guidance, such an accommodation should be made in coordination with the employee, not imposed unilaterally by the employer.
Many of the other recommendations included in the “Interim Guidance for Employers with Workers at High Risk” appear to offer guidance applicable to employers overall—not just with respect to high-risk workers. Notably, the CDC’s updated guidance recommend employers take the following potential measures:
- Employers should check their ventilation systems and ensure they are operating properly prior to reopening. Once reopened, employers should keep doors and windows open as much as possible to increase circulation of outdoor air unless doing so poses a safety risk to individuals and employees using the workspace.
- Employers should ask employees who use public transportation to consider teleworking to promote social distancing.
- Employers should enforce the use of cloth face coverings when around others where feasible, and, for certain industries, require face shields. Note, however, many states, including Massachusetts (as we alerted earlier this week), require that all employees wear a mask or facial covering at worksites where maintaining proper social distancing is not possible.
- Employers should consider conducting routine, daily health checks (e.g., temperature and symptom screening) of all employees. If conducting health screenings, employers must keep employee medical information confidential.
- Employees with COVID-19 symptoms at work should be separated from other workers and sent home immediately. Further, employers should close off areas used by the sick person and wait 24 hours to clean and disinfect. If it is not possible to wait 24 hours, wait as long as possible before cleaning and disinfecting. The CDC also directs that employers should inform local health officials and notify staff and customers (if applicable) of possible exposure within the workplace.
- Employers should inform employees who have had close contact with a person diagnosed with COVID-19 to stay home and self-monitor for symptoms.
- Employers should be prepared to consider closing for a few days if there is a case of COVID-19 in the workplace or for longer if cases increase in the local area.
- Employers should train all managers and staff in the above safety actions. Such training can be done virtually or in-person if social distancing is maintained.
The Labor & Employment team is monitoring these developments closely and is available to provide guidance to employers as they begin to resume business operations.