Ignoring or misapplying federal guidance could become costly
By Kate FotiNovember 12, 2020
Much to the chagrin of employers across this country, throughout the COVID-19 pandemic, guidance from the Centers for Disease Control and Prevention (CDC) has changed constantly. The recommended action plan one week sometimes becomes outdated before employers can implement and execute it.
The CDC, in its perplexing web of guidelines, recommends that companies take several actions to protect workers from contracting COVID-19. These include self-isolating sick employees, quarantining exposed employees, screening employees for symptoms prior to work, and installing partitions to protect public-facing employees.
Given their complexity, some of these directives are often not fully understood by companies. Further complicating matters, many of the recommendations have never been previously undertaken by employers, leading to misapplication. Worst of all, other guidelines are simply not feasible for some employers, leaving them with the tough decision of not following the CDC directive in order to stay in business.
Unfortunately, ignoring or misunderstanding these confusing guidelines could lead to legal risks. Beware of the following mistakes that could harm businesses severely.
Miscalculating the appropriate quarantine period for an exposed employee
Employers often misunderstand CDC guidance when calculating the length of the quarantine period for a worker who has been exposed to an infected spouse or household member. The key here is that the 14-day quarantine period does not begin until the last day the employee was directly exposed – using the 6-15-48 analysis (being within 6 feet of the infected person, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, until the infected person is released from self-isolation) – to the spouse or household member prior to the infected person being released from self-isolation. Thus, if the employee is directly exposed to the spouse or household member on days one through 10, the quarantine period does not begin until day 10. Yes, this means a worker may miss 24 days of work, instead of 14.
Failing to notify employees of a confirmed COVID-19 case in the workplace
Fisher Phillips’ COVID-19 litigation tracker has been following closely the number of lawsuits filed with COVID-19-related claims. The prevalence of claims relating to an employer’s failure to notify employees of a confirmed case of COVID-19 in the workplace is a troubling trend.
As the saying goes, bad news does not get better with age; it is important to be transparent with employees during this time. The CDC recommends not only informing directly exposed employees (6-15-48) of a confirmed COVID-19 case in the workplace, but also informing other “employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).” Thus, when a confirmed COVID-19 case occurs in a workplace, remember to inform those employees who worked near the infected worker (e.g., the same hallway, area or corridor), even though they weren’t directly exposed.
Incorrectly believing that wearing face coverings trumps the 6-15-48 analysis
Although the CDC recommends people wear masks to slow the spread of COVID-19, whether employees wear masks while directly exposed (6-15-48) to an infected person does not change that analysis. To ensure the safety of workers, remember to quarantine all who meet the 6-15-48 analysis, even if they were wearing a face covering while exposed.
Though not a law or regulation, CDC guidance can be construed by OSHA and the courts as the legal standard that defines the actions a company should take to protect its workers during this unprecedented time.
Although it is an evolving area of the law, claimants’ counsel will argue before courts that the violation of a CDC guideline is evidence of negligence, willfulness, or intent on behalf of the employer. Plaintiffs’ counsel will assert that the CDC guidance has established the level of care or duty owed to an employee or other claimant, and that the duty was breached by the company. This argument will be made regardless of the jurisdiction, venue or type of claim, including workers’ compensation claims, those filed directly by an employee seeking recovery above and beyond workers’ compensation benefits, and those filed by third parties (e.g. visitors, employee spouses) against companies.
To minimize exposure to such claims, remember to avoid making the three errors listed. Moreover, keep in mind that this is a constantly evolving area, with new guidance being issued nearly every day.