Latest CDC COVID-19 Guidance Creates Significant Dilemma for “Critical Infrastructure” Employers

By: Attorney Bryan T. Symes – Weld Riley, S.C.

The CDC recently issued “interim guidance” concerning recommended safety practices for critical infrastructure workers. The CDC’s guidance is available here: https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html

Interestingly, according to the CDC, “…critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.” The CDC’s position is inconsistent with how many critical infrastructure employers, to date, have addressed “close contact” cases in the workplace [those coworkers who have been a household contact, or have had workplace close contact within six (6) feet, of an individual with confirmed or suspected COVID-19], notwithstanding the stress on operational continuity. In that regard, many critical infrastructure employers have been sending “close contact” coworkers home for the CDC’s recommended 14-day period [coinciding with the COVID-19 incubation period].

According to the CDC, the “additional precautions” critical infrastructure employers “should” take in connection with exposed but asymptomatic coworkers are [the below bullets are reproduced directly from the CDC’s website]:

  • Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to him/her starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, he/she should self-monitor under the supervision of his/her employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean Work Spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, and shared electronic equipment routinely.
    No doubt, this is welcome guidance for critical infrastructure employers. However, as briefly explained below, critical infrastructure employers who choose to implement the CDC’s interim guidance may inadvertently create legal exposure if a “close contact” coworker becomes infected and experiences health complications, including death.

Recently, the relatives of a former Chicagoland Walmart employee who died as a result of COVID-19 complications filed a wrongful death/negligence lawsuit against the retailer. The lawsuit alleges that Walmart was negligent in how it administered infection control and prevention measures in connection with symptomatic employees. This lawsuit is likely only the beginning—and places critical infrastructure employers on notice that internal COVID-19 infection control and prevention strategies will be scrutinized by workers. Against this backdrop, although the CDC has stated that critical infrastructure employers may permit exposed but asymptomatic employees to continue working conditioned upon the above “additional precautions,” it makes sense for these companies to strongly consider requiring self-isolation of all “close contact” coworkers for the 14-day period, to protect against lawsuits like the one filed against Walmart.

If a critical infrastructure employer directs one if its “close contact” coworkers not to report to work, it should also carefully consider whether the paid sick leave provisions of the Families First Coronavirus Response Act may apply, and evaluate the potential impact on other workplace policies.

We will continue to monitor this and other COVID-19 developments closely in the coming days and weeks. Stay tuned!