The CDC Says Critical Infrastructure Workers May Continue to Work Following COVID-19 Exposure, and the EEOC Updates Its Guidance on COVID-19 and EEO Laws

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Patricia Tsipras

April 10, 2020

Critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, the Centers for Disease Control and Prevention (CDC) advise.  The CDC issued this advice to ensure continuity of operations of essential functions, provided the exposed individuals remain asymptomatic and additional precautions are implemented to protect them and the community.  Of course, if workers become sick, they should go home immediately.  The CDC also has prepared some flyers on the topic.

Who are critical infrastructure workers?

  • Federal, state, and local law enforcement
  • 911 call center employees
  • Fusion Center employees
  • Hazardous material responders from government and the private sector
  • Janitorial staff and other custodial staff
  • Workers – including contracted vendors – in food and agriculture, critical manufacturing, information technology, transportation, energy, and government facilities

What is potential exposure?

  • A household contact
  • Having close contact within six feet of an individual with confirmed or suspected COVID-19

What are the additional precautions?

  • Pre-screen by checking body temperature before the worker enters the facility.
  • Regularly self-monitor under the supervision of the employer’s occupational health program.
  • Wear a mask at all times while in the workplace for 14 days after last exposure.
  • The worker should maintain six feet and practice social distancing as work duties permit.
  • Disinfect and clean work spaces routinely.

The Equal Employment Opportunity Commission (EEOC) also updated its guidance regarding COVID-19 and EEO laws.  The issues that the EEOC addresses are:

  • When screening employees entering the workplace during the pandemic, may employers ask about any symptoms identified by public health authorities as associated with COVID-19?  Yes.  (See question A.2)
  • May employers store COVID-19-related medical information in an employee’s existing medical file, or must employers create a new medical file system solely for COVID-19?  Use the existing file.  (See question B.1)
  • May an employer maintain a log of the results of employees’ daily temperature checks?  Yes, if kept confidential.  (See question B.2)
  • May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?  Yes.  (See question B.3)
  • May a staffing agency notify its employer-client if it learns that an employee has COVID-19?  Yes.  (See question B.4)
  • May an employer postpone the start date or withdraw a job offer from a candidate who is 65 years old or pregnant because those categories of individuals are at higher risk for COVID-19?  No, but employers may choose to allow telework or discuss with the candidates their preferences regarding their start date. (See question C.5)
  • If a job may be performed only at the workplace, do reasonable accommodations exist for individuals with disabilities who are at a higher risk for COVID-19?  Accommodations for those who request reduced contact with others may include plexiglass, tables, or other barriers to ensure minimum distances between people, temporary job restructuring of marginal job duties, temporary transfers to a different positon, or modifying a work schedule.  (See question D.1)
  • If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may the employee be entitled to a reasonable accommodation?  As with any accommodation request, employers may ask questions to determine whether the condition is a disability, discuss reasonable accommodations, and request medical documentation.  (See question D.2)
  • If all employees are working remotely, may an employer delay discussing a reasonable accommodation with an employee who will not need the accommodation until s/he returns to the workplace?  Not necessarily.  Though employers may prioritize requests for reasonable accommodations that are needed while teleworking, employers may begin to address other requests now.  (See question D.3)
  • What do I do if an employee already is receiving a reasonable accommodation and requires an additional or modified accommodation due to COVID-19?  Discuss the new request with the employee as you would any accommodation request.  (See question D.4)

In addition to the questions above, the EEOC offers resources to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic (See question E.1) and guidance on severance agreements that may be offered to furloughed or separated employees.  (See question F.1)

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