WHEN THE SHOW MUST GO ON

Key Protection Protocols for an Essential Industry Employee’s COVID-19 Diagnosis/Symptoms

As of April 7, all but five states (the Dakotas, Nebraska, Iowa, and Arkansas) have some form of COVID-19 “safer at home” orders in place. For those businesses permitted or directed to stay open as part of the 16 federally-designated “critical infrastructure” sectors, management faces the critical responsibility of balancing production with protection.

While government entities hastily continue to issue voluminous guidelines on an operating employer’s do’s and don’ts (see, Infection Protection, What Employers Can Ask in a Pandemic, “Infection Article,” March 25, 2020), overlapping federal, state and local agencies are thus far answering the most sensitive questions differently, if at all. Thus, it’s all the more important that management promptly adopt and apply policy that reflects sound judgment under these unprecedented conditions.

Those policies should address requirements for the more-stringent isolation of confirmed and suspected COVID-19 cases and the less-severe quarantine of those with exposure, actual or possible, to such cases.

Who Must Be Isolated from a Still-Operating Company?:  All government levels acknowledge that an individual who has, “may have” or is “likely to have” COVID-19 should follow stringent isolation guidelines. For instance, Los Angeles County Department of Public Health (LACDPH) “Home Isolation Instructions” include a strict “stay home” standard, separation from one’s family and pets at home,  avoiding shared bedding, eating utensils, etc.

However, just who is an isolation candidate will remain vague as long as guidance from the Centers for Disease Control is indefinite on the full range of COVID-19 symptoms. As of March 24, the CDC acknowledged: “Limited information is available to characterize the spectrum of clinical illness associated with coronavirus disease 2019 (COVID-19) … Most patients with confirmed COVID-19 have developed fever (may be subjective or confirmed) and/or symptoms of acute respiratory illness (e.g., cough, difficulty breathing).” Emphasis supplied.

For lack of any definitive list, best employer practice would include a written protocol which lists qualifying symptoms for isolation as those published by an official source, whether or not such COVID-19 symptoms overlap with other ailments such as cold, flu or allergies.  See, e.g., the Kansas Department of Health and Environment comparison chart. (Note that the CDC currently publishes only a generic chart comparing “flu” and “common cold,” nothing as yet for COVID-19 comparison.)

Who Must Be Quarantined from an Operating Company?: All government levels concur that a person who has been in “close contact” with another who has, “may have” or is “likely to have” COVID-19 should follow somewhat less stringent quarantine guidelines. The LACDPH “Home Quarantine Guidance” includes staying home except for required medical care for 14 days.

However, just who is a quarantine candidate depends on which government guidance one choses to rely upon for the definition of “close contact.”

As of yesterday, April 7, the CDC “close contact” definition is: “(a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case; or (b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on). Emphasis supplied. This directive defines neither “approximately” nor “prolonged.”

The LACDPH “close contact” definition is: “(a) being within six feet for more than ten minutes; or (b) unprotected direct contact to secretions or excretions (for example, sneeze, cough, sweat) of a person diagnosed or who are likely to have COVID-19.” Emphasis supplied.  However, this LA county directive fails to explain whether that “more than ten minutes” is precise time down to one second beyond ten minutes or is ten-minutes consecutive, cumulative, or both.

For lack of any definite, consistent “close contact” standard from the government, best employer practice would include a written protocol which “errs” on the side of caution, i.e., once there is any question of contact within six feet for anything other than a fleeting pass-by, judgment should be exercised in the favor of quarantine.

What Must Operating Companies Do to Limit Spread After a Worker’s COVID-19 Diagnosis or Symptoms?: As explained in the Infection Article, the extraordinary current circumstances have led the Equal Employment Opportunity Commission (EEOC) to re-issue and update a guidance greatly relaxing employer prohibitions on inquiries on worker illness symptoms and related conditions. However, once management of a still-operating business is on notice of an employee who must isolate or quarantine, the question of who and how to ask for co-worker “close contacts” is one that even the EEOC has not yet progressed to address.

The issue is how far an employer can or should go to notify and protect other workers and their families of possible workplace exposure to the disease notwithstanding the privacy rights of the worker afflicted with COVID-19 or its reported symptoms. For lack of government direction to date, best practice would include a written protocol that seeks the subject worker’s written consent: (a) to disclose to management all fellow employees with whom he/she has had close contact while having any COVID-19 symptoms; and (b) to management’s identification of that employee in its inquiries to company employees to determine who, if any, have had such close contact with the person.

See also:

Our firm is currently advising a wide range of employer clients on the development of critical policies and procedures that enable continued delivery of essential goods and services while protecting workers from unnecessary exposure to possible COVID-19 infection. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles April 8, 2020

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