New guidance from the CDC and Governor Newsom on employer response to COVID-19

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As California employers struggle to keep on top of all the developments associated with COVID-19, more updated guidance has been issued by the CDC and State.

CDC loosens its return to work guidelines

The CDC has revised its guidance for when employers should allow infected employees to return to work. This guidance is generally more permissive than previous guidance based on further data and studies pertaining to contagious effects of the COVID-19 virus in relation to the timeline of symptoms. Specifically, the CDC sets forth the following alternate paths for an employee’s return to work—one that is based on actual testing results, one that is based on the employee’s symptoms, and a third to address situations where the infected employee was asymptomatic.

  1. Test-based method

    The CDC has previously stated that infected employees could return to work if they could provide two negative COVID-19 tests that were collected more than 24 hours apart. The new CDC guidance now indicates that COVID-19 patients are rarely contagious 10 days after symptom onset and that testing can yield positive results even in the absence of contagious viral material for extended periods after a patient is no longer contagious.

    As such, the CDC discourages employers from requiring testing as a prerequisite for employees to return to work in most cases where the employee no longer has (or never had) symptoms (some exceptions being for severely immunocompromised individuals, or when the employee would be returning to work earlier than the symptom-based timeline below, or in other rare circumstances) and instead save testing resources for diagnosing new cases.

  2. Symptom-based method

    The CDC’s prior guidance stated that employees could safely return to work upon the following: (1) absence of fever for at least 72 hours without the aid of fever-reducing medication; (2) respiratory symptoms have improved; and (3) 10 days have passed since the symptoms began.

    The CDC’s revised symptom-based method that applies in most cases allows previously infected employees to return to work upon the following: (1) absence of fever for at least 24 hours without the aid of fever-reducing mediation; (2) other ”symptoms” have improved (instead of just respiratory symptoms, since the CDC’s list of COVID-19 symptoms has expanded); and (3) at least 10 days have passed since the onset of symptom onset (although individuals with severe illness may remain contagious longer which may warrant extending this period to up to 20 days)

  3. Asymptomatic persons

    The CDC states that persons diagnosed with COVID-19 infection but who do not develop symptoms may return to work 10 days after the date of their first positive COVID-19 test.

    The CDC has acknowledged the possibility that employees who are actually infected with COVID-19 may be allowed to return to work sooner than others who are under a 14-day precautionary quarantine from just having been exposed to the virus.

New state-wide guidance issued through employer playbook

On July 24, 2020, Governor Newsom issued a COVID-19 Employer Playbook (which has been further modified since) that provides further guidance for employers on topics that include: re-opening safely, responding to actual or suspected COVID-19 cases, bringing affected employees back to work, measures to ensure an ongoing safe workplace, and developing policies and processes to address workplace COVID-19 issues. Included in this Playbook are checklists, forms and numerous links to additional resources.

Some noteworthy employer obligations set forth in the Employer Playbook include:

  • Reporting any “outbreak” of COVID-19 to the local health department in any jurisdiction where a COVID-19 employee resides when there is an outbreak in a workplace. An outbreak is defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households
  • Designating a workplace infection prevention coordinator to implement COVID-19 infection prevention procedures and to manage COVID-related issues among workers
  • Ensure that sick leave policies are sufficiently generous and flexible to enable workers who are sick to stay home without penalty and ensure that workers are aware of such policies
  • Developing mechanisms for tracking suspected and confirmed cases among workers in coordination with local health authorities

Although this guidance answers many questions, it is likely to create additional questions, including to what extent some of the guidance is mandatory, or merely “guidance.”

As employer obligations during this tumultuous times are rapidly changing, employers are advised to continually watch for updates from public officials and to consult with employment counsel with any questions.