A new, broader definition of “close contact” in regard to COVID-19 issued by the Centers for Disease Control and Prevention (CDC) could cause real headaches for employers.
Previously, the CDC defined a “close contact” as someone who spent 15 or more consecutive minutes within six feet of someone who had a confirmed case of COVID-19. As a result, employers who screen employees for the virus would typically ask them about fever, symptoms, travel and having been within six feet for 15 consecutive minutes or more with someone who had a confirmed case of COVID-19 or was awaiting a COVID-19 test.
The revised definition of close contact issued by CDC on Oct. 21 now applies to “someone who was within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated.”
The important change for employers to keep in mind is that the 15 minutes of exposure must now be assessed cumulatively over a 24-hour period.
“This deceptively subtle change could have a significant impact on how businesses identify who has been exposed to COVID-19 and who, therefore, should quarantine for 14 days,” say attorneys for the law firm of Morgan Lewis & Bockius. “Indeed, after someone in the workplace tests positive, substantially more employees will likely be identified as close contacts and required to quarantine under the CDC’s updated guidance.”
The CDC recommends that asymptomatic close contacts quarantine for 14 days from the date of their last known exposure to an infected individual, even if the close contacts test negative for COVID-19 or feel healthy, because symptoms may appear 2-14 days after exposure.
The CDC also says, “Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.”
The Morgan Lewis attorneys note that combining this 14-day quarantine recommendation with the new expanded definition of close contact may result in larger groups of employees, potentially entire teams, being required to quarantine. “This result can create unexpected business hardship.
To mitigate this effect, employers may have to consider changes to workplace policies and operations that are designed to limit the number of workers who may need to be quarantined after they experience an exposure,” they point out.
“Following the CDC’s expanded definition of close contact, businesses should consider reexamining their social distancing protocols and contact tracing policies,” they add. “Inevitably, under the new guidance, more individuals will be deemed to be close contacts in the event of a positive diagnosis.”
Steps Employers Can Take
In light of the new CDC guidance, the Morgan Lewis attorneys recommend that businesses consider doing the following:
- Incorporate the new definition of “close contact” into contact tracing protocols and make decisions about who should quarantine after an exposure based on the new definition.
- Review social distancing policies to try to minimize opportunities for brief but repeated contact with other people in the workplace.
- Divide the workforce into rotating teams so that only members of one team would need to quarantine after an exposure, thus reducing the potential impact on the business.
- Enforce stricter physical distancing requirements and limitations on in-person meetings/gatherings to minimize potential cumulative close contact throughout the workday.
- Evaluate the need for and feasibility of using technology (for example, GPS monitoring apps, wearable devices such as a bracelet or badge, security videos) to help track the numerous short interactions that employees may have with others throughout the day.
- Monitor state and local laws, regulations, and guidance for revisions in light of the CDC’s expanded definition of “close contact.” The attorneys warn that public health agencies will likely be using the new guidance as they conduct their own contact tracing and impose requirements on who should quarantine.
Although it is not mandatory that businesses choose to conform their policies to the CDC guidelines, the Morgan Lewis attorneys assert that the guidance can serve as a useful reference point for employers to consider when crafting COVID-19 prevention practices and contact tracing procedures.
Following the CDC guidance also can help an employer convey the message to its employees that the business is following applicable COVID-19 guidance, they note.
In addition, the attorneys explain that following the guidance may help businesses in limiting traditional tort liability if anyone among their workforce or customer base is tempted to sue, and will show a good-faith attempt to satisfy the General Duty Clause of the Occupational Safety and Health Act as well.
Editor’s Note: For more information on how to comply with COVID-19 guidelines, consider attending the virtual 2020 Safety Leadership Conference. For details on speakers, topics and registration, click here.