In large part, the decision tree reiterates the basic guidance the CDC has been providing for weeks.
With the economy in shock from the COVID-19 pandemic that has forced many businesses to cease in-person operations, the dialogue at the federal and state level has turned to “reopening.” As of the publishing of this Alert, all states have reopened to some degree and many businesses are now taking steps in earnest to prepare for the scale-up of operations. Until late last week, however, the federal government had provided no reopening guidance to employers, leaving them to grapple with a complex web of orders and guidance at the state and local levels as they take steps to bring employees back to work.
On May 14, 2020, the Centers for Disease Control and Prevention (CDC) finally published guidance in the form of a one-page workplace decision tree. Concurrently with its issuance of the workplace decision tree, the CDC issued several other one-page reopening decision trees for schools, restaurants and bars, youth programs and camps, child care programs and mass transit. Although the document―entitled “Workplaces During the COVID-19 Pandemic”―provides high-level recommendations for employers to consider when reopening, it largely defers to state and local guidance and is a far cry from the substantially more detailed guidance documents that the CDC reportedly had been considering in recent weeks.
Just days after unveiling the workplace decision tree, the CDC quietly published a more comprehensive workplace guidance document as Appendix F to a previously published document on the CDC’s website titled “CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again.”
The Workplace Decision Tree
The workplace decision tree is not prescriptive and does not contain highly detailed guidance. Rather, it constitutes a set of baseline recommendations for employers looking to reopen during the pandemic. In large part, the decision tree reiterates the basic guidance the CDC has been providing for weeks, including emphasis on the importance of hand-washing, social distancing, protection of vulnerable populations and regular individual-health screening.
The first step of the decision tree―“Should you consider reopening?”―presumes employers should take steps to reopen in nearly all circumstances, so long as doing so is “consistent with applicable state and local orders” and the employer is “ready to protect employees at higher risk for severe illness.” Consistent with the federal government’s deference to state and local authorities throughout the pandemic, the decision tree makes clear employers must continue to comply with state and local orders, which in most cases are far more detailed and impose requirements that exceed the high-level recommendations in the decision tree.
In the second step of the decision tree―“Are recommended health and safety actions in place?”―the CDC reminds employers not to relax standards simply because they can reopen, but to observe many of the existing and familiar restrictions, including modified work-related travel, staggering shifts and breaks, limiting large gatherings and enhanced cleaning, disinfecting and ventilation.
The third step of the decision tree―“Is ongoing monitoring in place?”―outlines considerations once employees are back in the workplace, including screening for symptoms, emergency plans, plans to handle sick employees and a reminder that employers should encourage employees who are ill to stay home.
Notably, the workplace decision tree does not provide guidance on some key reopening issues for employers. For example, the document does not discuss how a business should address workplace COVID-19 exposures, instead advising that employers should “be ready to consult with the local health authorities if there are cases in the facility.” Similarly, the decision tree does not expressly describe conditions that may cause an employer to consider closing its doors again. The decision tree also does not mention the virus or antibody testing that many employers are beginning to consider as an important component of their long-term reopening plans.
Supplemental Setting-Specific Interim Guidance
The supplemental setting-specific guidance that the CDC issued only four days after the workplace decision tree fleshes out the minimum recommendations contained in the workplace decision tree, and is likely to be more helpful to employers struggling with difficult decisions as they take steps to reopen.
Appendix F contains setting-specific interim guidance for employers in five specific settings: child care programs; schools and day camps; employers with workers at high risk; restaurants and bars; and mass transit administrators. The CDC has suggested employers use this latest publication as a supplement to the decision tree. The setting-specific supplemental interim guidance provides step-by-step, “specific practices that employers may find helpful at particular stages of the COVID-19 outbreak.” The CDC frames the guidance as a “menu of safety measures” from which employers may choose to the extent they “make sense… in the context of their operations, as well as State and local regulations and directives.”
For the general workplace, the CDC recommends that at each of the three steps of the reopening process envisioned in the CDC’s guidance―which are different from the three steps in the previously issued workforce decision tree―employers should: check for signs and symptoms; plan for when employees become sick; maintain healthy operations; and plan, and identify need, for closure. Among the recommendations for maintaining healthy operations, the new guidance suggests specific practices, including: flexible sick leave; creating a roster of back-up staff in anticipation of increased absenteeism; and a communication system to allow employee self-reporting and notification of workplace exposures and closures. The supplemental guidance also addresses what was noticeably absent from the workplace decision tree: the point at which companies should consider closing operations. The new guidance states that all workplaces should adjust operations according to state and local guidance as well as cases of COVID-19 in the workplace.
Guidance for Workers at High Risk
Consistent across the setting-specific guidance is the CDC’s recommendation that in each step of the reopening process, employers make efforts to protect employees who the CDC considers to be at higher risk for severe illness from COVID-19, including workers over the age of 65 and those with certain underlying medical conditions. Specifically, the CDC guidance suggests employers should encourage high risk employees to self-identify as such, and reduce such workers’ potential exposure to COVID-19 by utilizing telework options or moving these workers to assignments that require less contact with customers and employees. The CDC specifically suggests that high risk employees shelter in place for the first two steps of the three-step scale-up process (although it does not suggest that employers require such employees to shelter in place in lieu of working). The CDC recommendations note that employers must ensure compliance with applicable requirements under the Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA) while taking recommended actions to protect workers at high risk.
What This Means for Employers
While the CDC’s workplace decision tree serves as a good reminder of baseline considerations for employers making difficult reopening decisions, employers should regard the CDC’s high-level recommendations as minimum requirements for reducing the risk of liability associated with reopening. The setting-specific guidance that quickly followed underscores this point.
Employers in industries specifically addressed in the setting-specific guidance should compare their plans against the CDC’s setting-specific recommendations and determine which safety measures align with state and local requirements, and then consider implementing those measures that would benefit their particular operations. Furthermore, all employers should carefully review and consider the general workplace guidance contained in the interim guidance for employers with workers at high risk. While the new guidance does not address setting-specific considerations for industries the CDC has addressed in the past, including healthcare and manufacturing, employers in those industries should assume prior guidance remains applicable.
Employers with higher-risk employees should be careful to balance a human and practical approach to protecting and supporting such employees with the risk of exposure to liability under the ADA, ADEA and similar state and local laws. Among other things, employers should consider how the CDC guidance impacts their reasonable-accommodation policies and practices with respect to higher-risk employees, and engaging higher-risk employees in the decision-making process regarding their return to work. While it is impermissible for employers in nearly all cases to refuse to allow higher-risk employees to return to work when the employees wish to do so, employers have an obligation to engage in the interactive process and provide reasonable accommodations (such as a continued remote-work arrangement) to such employees who seek them, provided that such accommodations do not impose an undue hardship on the employer.
Employers should treat the CDC’s guidance as the “floor” of their workplace obligations. The latest CDC guidance, like the workplace decision tree before it, emphasizes employers’ obligation to comply at all times with state and local requirements. These regulations can vary widely between states and even municipalities, particularly as many states take a “phased” approach to easing restrictions on business operations. Additionally, employers also should heed guidance from state and local health authorities, and consider implementing their own heightened workplace-safety measures in connection with reopening. Employers should consult with counsel and, where practicable, infection control and/or healthcare specialists to ensure that they are making legally compliant, science-based decisions about whether, when and how to reopen their workplaces and maintain ongoing workplace safety afterward.
As any employer knows, there are many more complex issues and risks than those addressed in the CDC’s workplace decision tree and subsequently issued setting-specific guidance. A summary of some important considerations for employers taking steps to reopen during the COVID-19 pandemic can be found in Duane Morris’ employer guide to reopening 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 Christopher D. Durham, Meagan E. Garland, of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team 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.