With COVID-19 surging, employers should pay close attention to the Center for Disease Control’s (CDC’s) revised guidance on methods of COVID-19 transmission, its definition of “close contact,” and its guidance on quarantine after exposure to COVID-19.
It is commonly accepted that COVID-19 is primarily transmitted through close contact with an individual who has COVID-19. The “CDC continues to believe, based on current science, that people are more likely to become infected the longer and closer they are to a person with COVID-19.” In addition, however, the CDC now reports that potential airborne transmission of COVID-19 can occur in certain limited circumstances and may occur with exposure that is spread out over 24 hours and not only through consecutive minutes of close contact. The CDC also continues to recommend that individuals quarantine for 14 days after close contact with an individual who has COVID-19, but now allows for two options for shorter quarantine should state or local public health authorities decide to implement a shorter quarantine. Understanding the types of COVID-19 transmission and range of precautions can help employers understand COVID-19, work to prevent COVID-19 spread in the workplace, and educate employees on COVID-19 mitigation measures.
For most of the pandemic to date, the CDC has defined close contact as occurring when a person was within six feet of a COVID-19-positive individual for fifteen (15) consecutive minutes regardless of whether the people were wearing face coverings. Earlier this month, after evidence has shown that multiple incidents of shorter exposure over a longer period of time also places people at risk, the CDC revised this guidance. This new evidence acknowledges that there may be both a threshold of time exposure risk—length of exposure over time, as well as a dose-response exposure risk—exposure to an increased amount of the virus regardless of time. Using this new information, the CDC now advises that a close contact is:
[s]omeone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.
*Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes)….
In this guidance, the CDC explained that while it is “difficult to precisely define ‘close contact,’ . . . 15 cumulative minutes of exposure at a distance of 6 feet or less [regardless of whether face coverings were worn] can be used as an operational definition for contact investigation.” Factors in this analysis also include:
Employers should communicate this new guidance to employees in an effort to educate them on COVID-19 workplace safety and train any employees who conduct workplace contact tracing on the new definition of “close contact,” which expands the scope of the necessary tracing.
The CDC also defines two types of close contact transmission:
Despite withdrawing in September similar guidance, which acknowledged the existence of airborne transmission, the CDC now reports that “[a]irborne transmission of SARS-CoV-2 can occur under special circumstances.” These circumstances are based on “well-documented” events in which COVID-19 has been transmitted through exposure to smaller droplets and particles, sometimes referred to as aerosol, over longer distances (more than six feet), and after extended periods of time (more than 30 minutes) in enclosed spaces. In these instances, “[e]nough virus was present in the space to cause infections in people who were more than 6 feet away or who passed through that space soon after the infectious person had left” the space. While uncommon, it is important for businesses to be aware of airborne transmission and take steps to minimize the potential for it.
The circumstances under which the CDC warns that airborne transmission of COVID-19 has been established to occur are:
It is important to remember that the CDC has stated that COVID-19 is most commonly transmitted through contact or droplet transmission—that is, close contact transmission. Businesses should continue to develop and improve their existing precautions, which should include social distancing, use of face coverings, proper hand washing, and increased surface cleaning and disinfection, to prevent the spread of COVID-19, but, where possible, should also add further precautions to reduce the potential for airborne transmission of COVID-19.
In offices, employers should work to create spaces and ways to maintain social distance. These plans for social distance should address all areas of the workspace, including meeting/conference rooms, lunch/break rooms, entrances and exits and any other spaces where employees, clients and/or visitors may work, congregate, or visit. For instance, where possible, employers should:
Businesses can cut down on employees working or interacting in enclosed spaces in the workplace by:
Given the existence of airborne transmission, where possible, businesses and building owners should “ensure that ventilation systems in [their] facility operate properly.” Additionally, they should “consider taking steps to improve ventilation in the building [to] increase the percentage of outdoor air [and] increase total airflow supply [and air filtration] to occupied spaces.” Where it is safe to do so, employers can also open windows and use fans to improve air circulation and increase exchange of indoor/outdoor air.
As employers continue to review and revise their COVID-19 safety protocols, it is important work to incorporate employee feedback into the plans and procedures and to communicate plans and procedures to employees at all levels in the business, including independent contractors, temporary employees, and seasonal employees. Additionally, businesses need to provide training on new COVID-19 best practices and protocols to all employees. Employers also need to stress the importance of conducting COVID-19 symptom screenings before coming into the workplace, of staying home when sick or experiencing any COVID-19 symptoms, and of following the CDC guidelines for isolation and quarantine.
As an initial matter, the CDC clarified the difference between isolation and quarantine. Although these terms are often used interchangeably, in terms of the COVID-19 pandemic, they are separate and distinct actions.
Quarantine keeps someone who might have been exposed to the virus away from others. It is intended to reduce the risk that infected persons might unknowingly transmit infection to others.
Isolation keeps someone who is infected with the virus away from others (even others with COVID-19), even in their home.
The CDC’s latest guidance relates to quarantine after exposure to COVID-19, not to isolation for COVID-19-positive cases.
The CDC continues to recommend that people who have been in close contact with someone who has COVID-19 quarantine for 14 days after the last exposure as a best practice. (Where the exposure is to a member of a household where close contact cannot be avoided during the person’s 10-day isolation, then the quarantine period would not begin until after the person is able to leave isolation. This results in a minimum 24-day quarantine.) However, the CDC also recognizes that “a 14-day quarantine can impose personal burdens that may affect physical and mental health as well as cause economic hardship that may reduce compliance” and that “[i]mplementing quarantines can also pose additional burdens on public health systems and communities . . .” and that “the prospect of quarantine may dissuade recently diagnosed persons from naming contacts and may dissuade contacts from responding to contact tracer outreach if they perceive the length of quarantine as onerous.” Based on these factors, the CDC provided two options to the 14-day quarantine which may be implemented by state or local public health authorities where availability of viral testing and local conditions allow.
Quarantine can end no earlier than after Day 7, if an individual tests negative for COVID-19 on Day 5 or after AND no symptoms were reported during daily monitoring through Day 7 AND daily symptom monitoring continues through Day 14 AND individuals are counseled regarding the need to adhere strictly through Day 14 to all recommended mitigation strategies (i.e., wearing cloth face coverings, maintain social distancing, washing hands frequently, etc.).
The CDC stressed that this option should only be made available where “it will have no impact on community diagnostic testing” and stated that “[t]esting of persons seeking evaluation for infection must be prioritized.”
Finally, the CDC stressed that “[l]ocal public health authorities make the final decisions about how long quarantine should last in the communities they serve, based on local conditions and needs.” Therefore, employers need to review state and local quarantine guidelines and orders for each office location or employee residence to determine what quarantine requirements are in place in the relevant location.
This summary is just part of the overlapping web of issues facing businesses as a result of the COVID-19 pandemic. Our Nixon Peabody team will continue to provide updates on other issues facing employers and solutions to assist them in navigating through these turbulent times.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
OSHA Alert | 11.16.20