The CDC changed course on Monday, August 24, 2020, by removing from its website the Centers’ prior recommendation that “all close contacts of persons with SAR-CoV-2 infection” be tested for the presence of the virus. The CDC now states that individuals who were in close contact with a person with COVID-19 but who is asymptomatic do not “necessarily need a test.” Testing is still recommended for “vulnerable” individuals or if a health care provider or State or local public health officials recommend one.
Previously, the CDC on July 17, 2020, stopped recommending a test-based strategy to determine when an individual with a COVID-19 infection is no longer infectious and may discontinue home isolation. The CDC advised that such individuals could be around others after 10 days after symptoms first appeared, if such individual had no fever without the use of fever-reducing medications for at least 24 hours and their other symptoms had improved.
Many employers have required individuals who tested positive for COVID-19 to remain away from work until re-testing negative one or more times. Similarly, employers have instructed individuals who reported being in “close contact” to submit to COVID-19 testing and to self-isolate pending the test results.
In light of these recent changes in guidance, employers are left wondering how to respond to these common scenarios if testing-based strategies are no longer recommended. Medical experts have likewise expressed frustration with this about-face in policy.
Employers are leery – perhaps justifiably – of allowing infected employees to return without the assurance provided by one or more negative tests. Many legal practitioners anticipate a groundswell of lawsuits, workers’ compensation claims or OSHA complaints in which the complainant alleges he or she contracted COVID-19 in the workplace due to the fault of the employer. Until now, most employers have looked to the CDC’s guidance for direction. Many companies may now begin viewing the guidance as a “floor,” rather than a definitive blueprint, for their decision-making. Employers are not legally prohibited from requiring a negative test before allowing an employee to return. Many will likely continue to do so.
A more difficult scenario arises when an employee reports having been in “close contact” with an infected person. With testing no longer being recommended, the only remaining CDC guidance on point suggests that the employee should stay home for stay home for 14 days after his or her last exposure to that person. If the employee lives with an infected person, that could mean the employee must self-isolate for a significantly longer period than the COVID-positive individual. The infected person may be able to end self-isolation after only 10 days, but an employee who continues to live with the infected person and is unable to avoid “close contact” would have to remain in isolation for up to 24 days – i.e., 14 days after the infected person’s 10-day isolation period ends.
As has been the case throughout the pandemic, the CDC’s guidance remains fluid. Should you have any questions or wish to discuss issues pertaining to managing COVID-19 leaves of absence in the workplace, please call or e-mail Keith L. Hammond, Esq., at (407) 730-9909 or keith@hammondlawcenter.com.