The Centers for Disease Control (“CDC”) and U.S. Department of Labor (“DOL”) recently updated their respective guidance pertaining to the COVID-19 pandemic. The CDC provided updated recommendations for discontinuing isolation for individuals who have tested positive for the virus, as well as beginning and ending quarantine for those who have been in close contact with someone who has COVID-19. Among the DOL’s updates was the reiteration that employers may require employees who were out sick with COVID-19 to provide a doctor’s note, submit to a COVID-19 test, or remain symptom-free to a specified amount of time before returning to work.
This summary is meant to highlight portions of the CDC’s and DOL’s guidance about which employers are likely to have urgent questions. This summary is not meant to constitute legal advice.
The CDC’s Updated Guidance
Ending Isolation for Adults with COVID-19. Previously, the CDC recommended that, in many cases, individuals who tested positive for COVID-19 “can be around others after you receive two negative test results in a row, at least 24 hours apart.” On July 22, 2020, the CDC updated its guidance and moved to a non-testing standard in most cases. The guidance states:
- For most persons with COVID-19 illness, isolation and precautions can generally be discontinued 10 days after symptom onset and resolution of fever for at least 24 hours, without the use of fever-reducing medications, and with improvement of other symptoms.
- A limited number of persons with severe illness may produce replication-competent virus beyond 10 days that may warrant extending duration of isolation and precautions for up to 20 days after symptom onset; consider consultation with infection control experts.
- For persons who never develop symptoms, isolation and other precautions can be discontinued 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.
The CDC went on to state that for persons who are severely immunocompromised, a test-based strategy could be considered in consultation with infectious diseases experts. For all others, the CDC no longer recommends a test-based strategy except to discontinue isolation or precautions earlier than 10 days after symptom onset and resolution of fever for at least 24 hours.
Quarantine for Individuals Possibly Exposed to COVID-19. The CDC also updated its guidance on beginning and ending quarantine for individuals who have been in close contact with someone who has COVID-19. Close contact includes:
- Being within 6 feet of someone who has COVID-19 for at least 15 minutes
- Providing care at home to someone who is sick with COVID-19
- Having direct physical contact with the person (touching, hugging, kissing)
- Sharing eating or drinking utensils
- Being sneezed on, coughed on, or having respiratory droplets on the person
The CDC listed four scenarios under which an individual might have close contact with someone who has COVID-19. First, if an individual had close contact with someone who had COVID-19 but will not have further contact or interactions with the person while they are sick, the individual should quarantine for 14 days. For example, if the close contact occurred at noon on the first day of the month, the quarantine should last until noon on the fifteenth day of the month.
Second, if the individual lives with someone who has COVID-19, such as a roommate, partner, or family member, and that person can isolate by staying in a separate bedroom and will have no close contact during isolation, the individual should quarantine for 14 days from when the person with COVID-19 began home isolation.
The third scenario addresses a situation where an individual who is already under quarantine ends up having close contact with a person who is sick during the quarantine, or if another household member becomes sick with COVID-19. The 14-day quarantine period must restart from the last day the individual had close contact with anyone in the house who has COVID-19. Any time a new household member becomes sick and the individual has close contact, the individual will need to restart the quarantine period.
Finally, if an individual lives with someone who has COVID-19 and cannot avoid continued close contact, the individual should avoid contact with others outside the home while the person is sick and quarantine for 14 days after the person who has COVID-19 meets the criteria to end home isolation. Thus, the individual will spend more time in quarantine than the person who is sick.
The DOL’s Updated Guidance
The DOL published new COVID-19 guidance on a number of issues on July 20, 2020. Perhaps most relevant, in light of the likelihood that employees in quarantine or isolation will lobby to return to work without the necessity of a COVID-19 test, is the DOL’s reiteration that an employer may require such testing as a condition of returning to the workplace. In its Frequently Asked Questions pertaining to the FMLA and COVID-19, the DOL stated (FAQ No. 7):
May an employer require an employee who is out sick with COVID-19 to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?
Yes. However, employers should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with doctors or other health care providers to verify they are well or no longer contagious.
During a pandemic health crisis, under the Americans with Disabilities Act (ADA), an employer would be allowed to require a doctor’s note, a medical examination, or a time period during which the employee has been symptom free, before it allows the employee to return to work. Specifically, an employer may require the above actions of an employee where it has a reasonable belief – based on objective evidence – that the employee’s present medical condition would
- impair his ability to perform essential job functions(i.e., fundamental job duties) with or without reasonable accommodation, or,
- pose a direct threat(i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace.
In situations in which an employee’s leave is covered by the FMLA, the employer may have a uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s health care provider that the employee is able to resume work. Employers are required to notify employees in advance if the employer will require a fitness-for-duty certification to return to work. If state or local law or the terms of a collective bargaining agreement govern an employee’s return to work, those provisions shall be applied. Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.
The DOL went on to address the following question (FAQ No. 13):
I was out on FMLA leave unrelated to COVID-19. While I was out, my company implemented a new policy requiring everyone to take a COVID-19 test before they come to the office. Under the FMLA, can my employer require me to get a COVID-19 test under this policy?
The FMLA does not prohibit the employer’s testing requirement. When your FMLA leave is over, your employer must reinstate you to the same job or an equivalent position. However, you are not protected from actions that would have affected you if you were not on FMLA leave. For example, if a shift has been eliminated, or overtime has been decreased, you would not be entitled to return to work that shift or the original overtime hours. That principle also applies here, where your employer’s requirement for testing isn’t related to your having been out on FMLA leave but instead, all employees, regardless of whether they have taken any kind of leave, are required to be tested for COVID-19 before coming to the office. Other laws may impose restrictions on the circumstances when your employer can require COVID-19 testing, and what types of tests are permitted. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
The “takeaway” from the DOL’s guidance is that employers may continue to require COVID-19 testing prior to allowing individuals to return to work, so long as it does so in a manner that does not violate other workplace laws.