Jun 02, 2020
CDC Guidance for Employers Reopening Into a COVID-19 World
Jun 02, 2020
Last month, the Centers for Disease Control and Prevention (CDC) issued extensive guidance for reopening the country as states and local governments continue to curb the rate of COVID-19 infections. On May 19, the CDC released a 60-page document laying out interim guidance for childcare programs, schools and day camps, restaurants and bars, and mass transit, along with detailed social distancing and safety protocols for employers—specifically those with workers at high risk for severe illness from COVID-19. On May 27, the CDC followed up with guidance describing how office buildings can reopen safely. We discuss highlights of the CDC’s guidance most employers should familiarize themselves with, followed by highlights specifically for office building employers.
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, 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.
Per the recommendations, office building employers should ensure, prior to reopening, that the building is ready for occupancy after months of inactivity. This includes confirming that the ventilation system is working properly, opening windows and doors to increase circulation of outdoor air if possible and safe to do so, and checking for dangers associated with a prolonged facility shut-down, such as mold growth or stagnant water.
Next, the CDC’s guidance for offices advises employers to implement “hazard controls” to reduce the likelihood of disease transmission. The CDC recommends the following measures:
- Installing transparent shields or other physical barriers to separate employees and visitors where maintaining proper social distance is not possible;
- Using signs or floor markings placed six feet apart to indicate where employees and visitors should stand;
- Encouraging employees to conduct meetings and small group activities outside;
- Replacing “high-touch communal items” like coffee pots and shared snacks with pre-packaged, single-serving items;
- Providing accommodations for employees who use public transit to commute to work, including by reimbursing parking costs;
- Prohibiting “handshaking, hugs, and fist bumps”; and
- Using “ultraviolet germicidal irradiation” to help inactivate the virus.
Office building employers planning to resume or maintain their onsite operations should consider incorporating the above guidance (as well as guidance from the Occupational Safety and Health Administration), while also ensuring that their return to work and operations plans incorporate applicable guidance and requirements from state and local authorities.
The law firm of WilmerHale prepared this article as one of its “Client Alerts,” which it publishes on its website. Many thanks to Peggy Otum for making it available to the Marin Lawyer. The WilmerHale attorneys who contributed to this article are: Jonathan D. Rosenfeld, Laura E. Schneider, Andrew Stauber, and Michael J. Lenzi.