A few minutes of close contact here and there are now of greater concern.
Among the precautions to help prevent the spread of COVID-19 is social distancing. In the workplace, that generally means being at least 6 feet away from another person. In this regard, we all should remember that it generally is not social distancing or wearing a mask, but social distancing and wearing a mask.
There are many circumstances where an individual may have a greater risk of exposure to COVID-19. One of them is “close contact,” as defined by the Centers for Disease Control and Prevention (CDC), with a person who has COVID-19. Historically, for purposes of COVID-19, close contact has been defined as being within 6 feet of a person with COVID-19 for at least 15 consecutive minutes. That standard was changed last week by the CDC and has important implications for employers.
As revised, close contact is now defined as follows:
Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated. (Emphasis added.)
Accordingly, an employee may have had close contact with a co-worker who has or is suspected of having COVID-19 even if they have not been within 6 feet of each other for 15 consecutive minutes. By way of example, three individual exposures of five minutes each in a 24-hour period would be enough to equal close contact.
This change is relevant in terms of contact tracing. It is also critical in terms of how employers manage on-site operations. A few minutes of close contact here and there are now of greater concern.
Further, most employers require employees (and others) to report certain circumstances that may result in their remaining out of the workplace for some period of time. These circumstances include, by way of example only, having a fever or other possible symptoms of COVID-19 or having close contact with a person having or suspected of having COVID-19. The new CDC definition must be considered in any reporting requirements relevant to close contact.
Unfortunately, it gets even more complicated when we look at state and local law and guidance. For example, Pennsylvania defines close contact differently in different orders, sometimes focusing on 10 consecutive minutes and other times focusing on 15 consecutive minutes. How does this dovetail with the CDC?
An argument can be made that a Pennsylvania employer should define close contact as either 10 consecutives minutes or 15 cumulative minutes. Will the average employee be able to keep and apply both standards?
An alternative is not to define close contact with precision in terms of reporting requirements. Employers likely will get more reports than the CDC or state law may require. Under these circumstances, the employer may want to work with a healthcare professional if it has any doubt as to whether a report creates an infection concern.
Being near an infected employee for four minutes within a 24-hour period probably does not create concern, particularly if the employee is wearing the required mask. Conversely, being sneezed on by someone with COVID-19, even if the employee is near the infected person for only one minute and wearing a mask, very well may cause concern.
What This Means for Employers
Experiencing COVID-19 fatigue? You are not alone. But COVID-19 has no fatigue. And it continues to inflict medical, psychological and economic pain.
Employers should update their COVID-19 protocols in light of CDC guidance and other federal, state and local guidance or legal mandates. Employers also should ensure that their human resources teams and managers are informed regarding these changes. Finally, in light of this updated guidance, now is a good time for employers to remind all employees of the importance of adhering to COVID-19 workplace safety measures, including social distancing whenever possible and wearing face coverings in the workplace.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Jonathan A. Segal, Christopher D. Durham, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.