On top of all the other challenges posed by the COVID crisis, employers have had to grapple with ever-changing and contradictory guidance from the Center for Disease Control, Virginia, and various government agencies. Most recently, CDC updates and Governor Northam’s Executive Order (“E.O.”) 72 have created additional confusion for businesses regarding quarantine after exposure to COVID-19 and face coverings.
Since early in the crisis, the CDC has recommended that after “close contact” (being within 6 feet for 15 minutes or more) with an infected person the exposed individual should self-quarantine for 14 days. Many businesses have found the 14-day recommendation to be impractical, as in some circumstances an entire department, or the whole business, would be sidelined for a fortnight. Employees, too, have objected to 14 days without pay. The emergency paid sick leave provided by the Family First Coronavirus Response Act, which will expire at the end of 2020, has been inadequate because it only applies if the employee is advised to self-quarantine by a Health Law provider (not by an employer) and because each employee can use it only once. Given the ubiquity of the virus, repeated exposure is common.
The CDC has alternative exposure guidance for the “critical infrastructure sector,” allowing those workers to continue working after exposure, provided they remain asymptomatic, wear a face covering, are screened daily for symptoms, and follow other precautions. On November 16, however, the CDC updated the critical infrastructure sector guidance to stress that this option “should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.”
On December 10, the CDC relaxed the general (non-critical infrastructure sector) exposure guidance by offering a shorter quarantine period: quarantine can be concluded after day 10 without testing or after day 7 after receiving a negative test result (test must occur on day 5 or later). Whether to apply this option, however, is left to local public health authorities: “local public health authorities make the final decisions about how long quarantine should last.” At least some Virginia public health authorities are declining this option and sticking with 14 days.
The Virginia Emergency Temporary Standard (“ETS”) does not address whether or how long employees must quarantine after exposure. The proposed revisions to the ETS are also silent on this issue. Most employers, then, are left with the CDC’s 14-day quarantine guidance, which is becoming ever more burdensome as the infection rate climbs.
Face Coverings for Lower-Exposure Risk Employees
The ETS requires face coverings for lower-exposure risk employees only when they come within six feet of others. For many office workers, if their workstations are spaced far enough apart, they have been able to remove their face coverings while at their desks. The proposed revisions to the ETS tighten the requirements for what constitutes a face covering (it now must have at least two layers of washable, breathable fabric and no exhaust valve), but do not expand the requirement to wear one.
Governor Northam’s E.O. 72, however, issued on December 10, mandates that “[a]ll individuals in the Commonwealth aged five and older must cover their mouth and nose with a face covering, as described and recommended by the CDC, if they are in an indoor setting shared by others.” As E.O. 72 supersedes the ETS to the extent of any conflict, it appears that E.O. 72 requires employees to wear face coverings when previously there was no need. Exactly when face coverings are required, however, is a mystery, as there is no definition for “indoor setting shared by others.” Stretched to an extreme, that term could apply if there was anyone else in the same building, no matter how far apart. The Virginia Department of Labor and Industry has indicated that it is working to provide guidance on this issue.
For now, employers are left to navigate these difficult issues without any clear rules or practical solutions from the government. The attorneys at Vandeventer Black LLP are available to assist businesses with making these difficult decisions.