By Conn Maciel Carey’s COVID-19 Task Force
On July 20, 2020, the U.S. Centers Disease Control and Prevention (“CDC”) made major revisions to its COVID-19 “discontinue home isolation” guidance, upon which employers may rely to determine when it is safe for employees to return to work. This comes only a couple months after CDC made major revisions to the same guidance document when, on May 3, 2020, it extended the home isolation period from 7 to 10 days since symptoms first appeared for the symptom-based strategy in persons with COVID-19 who have symptoms, and from 7 to 10 days after the date of their first positive test for the time-based strategy in asymptomatic persons with laboratory-confirmed COVID-19.
In its most recent update, CDC has determined that a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. It has also modified its symptom-based strategy in part by changing the number of hours that must pass since last fever without the use of fever-reducing medication from “at least 72 hours” to “at least 24 hours.” CDC’s revisions should trigger employers to immediately revise their COVID-19 preparedness, response, and control plans to account for the latest changes. In light of the recent COVID-19 regulation that Virginia promulgated almost at the same time that CDC decided to update its guidance, the revisions also demonstrate that COVID-19 is not the type of hazard easily subject to a regulatory standard.
To start, it is important to understand the major changes that CDC has just made. As you know, prior to CDC’s most recent changes, CDC offered individuals with COVID-19 who had symptoms two options for discontinuing home isolation:
It also offered individuals with COVID-19 who never showed symptoms two options:
With its most recent update, CDC has essentially eliminated Option 2 (the test-based strategy) for both groups – those who have symptoms and those who never showed symptoms. Now, there is only a symptom-based strategy for those who experience symptoms, and a time-based strategy for those who do not.
In rationalizing the changes, CDC explains that, as it is learning more about COVID-19 every day, it revised its guidance based on the most current available information known about COVID-19. CDC informs, in short, that it has backed away from a test-based discontinue home isolation strategy because individuals can test positive for many weeks (up to 3 months) after initial infection, and long after recovery. It provides, “Although replication-competent virus was not isolated 3 weeks after symptom onset, recovered patients can continue to have SARS-CoV-2 RNA detected in their upper respiratory specimens for up to 12 weeks.” In addition to revising its guidance to align with the most current available information, CDC states that the changes will “limit unnecessary prolonged isolation and unnecessary use of laboratory testing resources.”
In sum, CDC’s revised guidance states that persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:
* CDC notes that a limited number of persons with severe illness may produce replication-competent virus beyond 10 days that may warrant extending duration of isolation for up to 20 days after symptom onset. Such individuals are recommended to consider consultation with infection control experts.
Furthermore, the guidance provides that persons infected with SARS-CoV-2 who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.
COVID-19 Safety Regulations
With the promulgation of the nation’s first mandatory COVID-19 workplace safety regulation in Virginia, the revised guidance demonstrates that COVID-19 is not the type of hazard that is conducive to being controlled via a regulatory standard. Prescriptive, inflexible standards mandating specific requirements in this area is not workable because flexibility is needed to ensure that employer programs and policies can evolve with the continuously evolving health guidelines and recommendations tracking the scientific community’s growing knowledge about the virus.
Indeed, the Virginia COVID-19 regulation includes specific language about the now-dated test-based strategy. It requires employers to “develop and implement policies and procedures for employees known or suspected to be infected with the SARS-CoV-2 virus to return to work using either a symptom-based or test-based strategy, depending on local healthcare and testing circumstances[,]” and “develop and implement policies and procedures for known to be infected with SARS-CoV-2 asymptomatic employees to return to work using either a time[-]based or test-based strategy depending on local healthcare and testing circumstances.” The regulation goes on to regurgitate CDC’s prior guidance.
Clearly, an inflexible, prescriptive, command-and-control-type standard is not workable or effective for a hazard about which we know so little and about which the science related to hazard control and mitigation is continuously evolving. To establish this type of standard would bind employers to outdated requirements that risk doing more damage than good, potentially even increasing virus spread.
Conn Maciel Carey’s COVID-19 Task Force is forming a coalition to: (1) monitor other state plans states (Virginia might have been the first, but will certainly not be the last) for rulemaking activity in this area; and where such activity looks likely or commences (2) participate in the rulemaking to ensure employers’ interests are addressed by either derailing efforts to promulgate a standard or ensuring that it is drafted in a manner that is workable and feasible from a compliance standpoint, is narrowly directed, and is not unduly burdensome.
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For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts. Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace. Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.