The Centers for Disease Control and Prevention (CDC) has issued guidance aimed at state governments and employers about the reopening of workplaces and other sites to the public earlier ordered closed in response to the Coronavirus pandemic.

The 62-page document details how the agency is supporting the step-by-step reopening of the nation’s economy and offers practical advice for employers and employees, much of which is in line with earlier recommendations issued over the past three months by the CDC, other federal agencies, state and local governments, and industry associations.

The publication also offers interim guidance aimed at childcare programs, schools and day camps, employers with high-risk workers, restaurants and bars, and mass transit administrators.

“As businesses and other organizations gradually open after the COVID-19-related slowdown, they will need to consider a variety of measures for keeping people safe,” CDC says. “These considerations include practices for scaling up operations, safety actions (e.g., cleaning and disinfection, social distancing), monitoring possible re-emergence of illness, and maintaining health operations.“

Critics of the Administration had faulted President Trump for encouraging states to begin reopening businesses before the CDC had a chance to weigh in with its recommendations on how they should proceed, which are embodied in the guidance that was published on May 26. Many states already had forged ahead with their own reopening plans after obtaining input and advice from a variety of sources.

In addition, other federal and state agencies had adopted other CDC guidelines when they were in the process of developing recommendations for employers who continued to operate during the quarantine as essential businesses and operations, like emergency and medical services. Many of those guidelines appear to have been incorporated into current state reopening plans.

The agency recommends a three-phased plan for reopening that outlines an approach for relaxing community mitigation measures while protecting vulnerable populations, such as the elderly and those with underlying health conditions. Along with the three-phased approach, the CDC proposes the use of six “gating criteria” to be assessed before progressing into the next phase of reopening.

This approach can be implemented statewide or community-by-community at each state governor’s discretion, according to the CDC.

These gating criteria include decreases in newly identified COVID-19 cases, decreases in emergency department and/or outpatient visits for COVID-19-like illness, and the existence of minimum infrastructure necessary for a robust testing program.

As an example, to enter Phase 1 of reopening, a community would assess the gating criteria of decreases in newly identified cases and would need to determine whether there is a downward trajectory (or near-zero incidence) of documented cases over a 14-day period.

Consideration between phases should be given to such factors as existing public health capacity based on certain measurable criteria, such as contact tracing and incidence relative to local public health resources, notes the law firm of Greenberg Traurig LLP.

“The guidance acknowledges some communities may progress sequentially through the reopening phases while other jurisdictions may end up moving backwards at certain points, based on an ongoing assessment of the gating criteria against the threshold for entering each phase,” it says.

Where Employers Fit

When it comes to state and local supervision of the reopening of different businesses the CDC recommends the imposition of a three-step process for scaling up. These steps are scaling up for businesses only if they can ensure:

Step 1: Strict social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; workers at higher risk for severe illness are recommended to shelter in place.

Step 2: Moderate social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; workers at higher risk for severe illness are recommended to shelter in place.

Step 3: Limited social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers.

For individual workplaces that begin to scale up activities towards pre-COVID-19 operating practices, CDC acknowledges that some workers are at higher risk for COVID-19. These include workers over age 65 and those with underlying medical conditions, such as chronic lung disease, hypertension, weakened immunity, or severe obesity.

Workers at higher risk for severe illness should be encouraged to self-identify, and employers should avoid making unnecessary medical inquiries, stress attorneys Thomas Gies, Thomas Koegel, Kris Meade and Tyler Brown of the Crowell & Moring law firm.

“Employers should consider carefully how to reduce workers’ risk of exposure to COVID-19 consistent with relevant Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA) regulations and guidance previously issued by the Equal Employment Opportunity Commission (EEOC),” they add.

To protect higher risk employees, CDC suggests that, throughout all three of the reopening steps, employers should consider various solutions, such as:

● Supporting and encouraging options to telework.
● Offering workers at higher risk duties that minimize their contact with customers and other employees (e.g., restocking shelves rather than working as a cashier), if agreed to by the worker.
● Encouraging contractors and other entities sharing the same work space to follow CDC guidance.
● Attempting to reduce potential community spread by adopting steps to eliminate travel by employees to workplaces in lower transmission areas and vice versa.

The suggested best practices for employers can vary depending on the numbered step adopted by their state government. The CDC points out, “the scope and nature of community mitigation suggested decreases from Step 1 to Step 3” but ultimately, “some amount of community mitigation is necessary across all steps until a vaccine or therapeutic drug becomes widely available.”

Most employers have heard of the CDC’s recommended best practices, which cover among other things promoting healthy hygiene practices; intensifying cleaning, disinfection and ventilation; promoting social distancing; limiting sharing; and training all staff. Also included are checking for signs and symptoms; planning for what to do when employees get sick; and how to maintain healthy operations.

Attorneys Lori Armstrong Halber and Leora Grushka of the Reed Smith law firm urge that businesses operating “typical” workplaces (meaning they are not childcare, schools, restaurants/bars, or mass transit) should also consider the following key takeaways:

● Continue to implement social distancing through all three reopening steps. Businesses operating in-person services should stagger or rotate shifts whenever possible and consider video- or tele-conference calls over in-person meetings.
● Limit group gatherings to no more than 10 people during Step 1 and no more than 50 people during Step 2. Throughout all of the steps, gatherings should not take place if a distance of six feet cannot be maintained between participants.
● Consider conducting routine, daily health checks or temperature and symptom screening of all employees and encourage all sick employees to stay home. Send employees with symptoms home immediately and have procedures in place to disinfect, notify local authorities and inform employees who may have been in close contact with the sick employee.

Halber and Leora Grushka also recommend that employers should create and maintain a system to encourage their employees to self-report and notify management about any exposure they may have experienced.

“Remember the effect the pandemic may be having on employees and implement flexible practices, including flexible sick leave and telework policies,” they stress. “Additionally, businesses should appoint an individual as a point of contact to respond to COVID-19 concerns and monitor absenteeism.”

The Crowell & Moring lawyers note this new CDC guidance is meant to complement the agency’s previously released decision tools, such as the Workplace Decision Tool, as well as other COVID-19-related Occupational Safety and Health Administration (OSHA) and CDC guidance. CDC will continue to update this guidance as it develops further best practices.