By Bonnie Mayfield

Law360 (November 20, 2020, 12:23 PM EST )

Bonnie Mayfield

The Centers for Disease Control and Prevention's new definition of "close contact" in its COVID-19 case investigation and contact tracing guidance[1] creates challenges for employers and workplaces. Here is what practitioners and employers need to know about the new definition and some countermeasures that can be taken to reduce vulnerability as COVID-19 hospitalizations are surging and winter is coming.[2]

The Expanded Definition of Close Contact

Per the CDC, "[p]eople who have been in close contact with someone who has COVID-19 — excluding people who have had COVID-19 within the past 3 months — should quarantine."[3] The CDC's April 5 COVID-19 interim case definition defined close contact "as being within 6 feet for at least a period of 10 minutes to 30 minutes or more depending upon the exposure."[4]

On Oct. 21, the CDC's new update expanded that definition to now assess close contact exposure cumulatively over a 24-hour period. Under the more expansive definition, close contact is defined as being

within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period, starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.[5]

Under this expansive definition, "15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation."[6] So, shorter, repetitive contacts, adding up to 15 minutes over a 24-hour period, are now considered to be close contact.

As limited data makes it difficult to precisely define close contact, the CDC also considers additional factors — such as proximity, duration of exposure, whether the infected person is symptomatic or likely generated respiratory aerosols, and other environmental factors — when defining close contact.[7]

The CDC recommends that the determination of close contact be made regardless of whether the contact was wearing respiratory personal protective equipment and whether fabric face coverings were used.[8]

Countermeasures That Can Reduce Vulnerability

Because the expanded definition of close contact assesses 15 minutes of exposure cumulatively over a 24-hour period, even brief workplace, in-person interactions, in the aggregate, can meet the definition of close contact and significantly impact the workplace. Practitioners, therefore, can recommend countermeasures to help reduce employer vulnerability caused by a substantial number of employees potentially being excluded from the worksite due to their close contact and quarantine requirements.

Reconfiguration of Work and the Workplace

Because of the newly expanded definition, limiting contact and keeping 6 feet of distance between employees is especially important. To reduce the total number of cumulative contacts, employers should consider possible reconfiguration of the worksite and the nature of the work, especially during the winter months where employees may be indoors more.

Among other areas, look at the essential functions of the work, the frequency and length of necessary in-person interactions, and, of course, whether employees are more than 6 feet from others when situated at their workstations or otherwise working in-person. Determine how the work and the worksite can be arranged for maximum social distancing, less frequent employee in-person interactions, and reducing employee workplace movement.

Safety Training and Compliance Enforcement

Employers should consider increasing the frequency of safety reminders about social distancing and not congregating in the workplace. Educating the workforce about how to protect themselves,[9] the new definition of close contact, and the need to limit necessary in-person interactions can help ensure employees' safe working distance.

There should be more frequent compliance and safety reminders addressing sanitization protocols including regular hand hygiene, using PPE,[10] and cleaning and disinfecting high-touch areas.[11] Enforcing compliance will be key to the success of the safety training.

Update Contact Tracing Protocols

Because the cumulative total of 15 minutes or more over a 24-hour period starts "from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection)," the infected person may have been in the workplace. If so, then employers will participate in contact tracing as workplaces including production plants are part of the CDC's hierarchy for close contact evaluation and monitoring.[12] 

Any existing contact tracing protocol, therefore, should be updated. Employers also should consider how to rapidly capture employee, cumulative contacts rather than await an urgent need to retrace steps of employee interaction.

Keep in mind that "[c]ontact tracing will be conducted for close contacts (any individual within 6 feet of an infected person for a total of 15 minutes or more) of laboratory-confirmed or probable COVID-19 patients."[13] The CDC recommends that:

• "If testing is not available, symptomatic close contacts should self-isolate and be managed as a probable COVID-19 case."[14]
  
  
• "Asymptomatic close contacts who are not tested should self-quarantine and be monitored for 14 days after their last exposure, with linkage to clinical care for those who develop symptoms."[15]

Telework and Other Temporary Worksite Options

Employers should consider possible options to worksite locations other than reporting to an office or a school setting. The CDC's Nov. 6 Morbidity and Mortality Weekly Report[16] describes a multistate case-control study that concludes: "Providing the option to work from home or telework when possible, is an important consideration for reducing the risk for … [COVID-19] infection."

Of course, as it can be challenging to telework during the pandemic, there should be a constant evaluation of teamwork and productivity, and a keen awareness of the impact of telework on employee well-being.[17]

Shift and Cohort Staffing Limits

Keeping the same composition of the workers on a shift or in the office, during scheduled times, is another option. With this option in place, employees always work and only interact in-person with the same group of people at the worksite.

Should infection occur, then close contact scrutiny and employee absence from the worksite can be limited to those on that shift and in that cohort of employees. Limiting potential workplace exposures by shift and cohort can minimize widespread disruption of operations due to close contact with an infected person. The infected person will have only worked on the identified shift and with the cohort, not others.

Long winter made short, it is better to plan and manage and understand the implications of the CDC's expanded definition of close contact. Employers should not await an urgent need or potential widespread business disruption due to employees being in close contact with an unlimited number of other employees as infection rates are rising, making it more likely than not that there may be close contact in the workplace and within the workforce.

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Bonnie Mayfield is a member at Dykema Gossett PLLC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] "Appendix A – Glossary of Key Terms," https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appendix.html#contact.

[2] "Winter Will Make The Pandemic Worse. Here's What You Need To Know," https://www.technologyreview.com/2020/10/08/1009650/winter-will-make-the-pandemic-worse/.

[3] "When to Quarantine," https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/quarantine.html#:~:text=Who%20needs%20to%20quarantine%3F,do%20not%20develop%20symptoms%20again.

[4] "Coronavirus Disease 2019 (COVID-19) 2020 Interim Case Definition, Approved April 5, 2020" https://wwwn.cdc.gov/nndss/conditions/coronavirus-disease-2019-covid-19/case-definition/2020/.

[5] "Appendix A – Glossary of Key Terms," supra note 1 ("24 hour period" is noted as: "Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes")).

[6] Id.

[7] Id.

[8] Id.

[9] "How to Protect Yourself & Others," https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

[10] "Considerations for Wearing Masks," https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html?ACSTrackingID=USCDC_2067-DM42632&ACSTrackingLabel=Community%20Use%20of%20Masks%20to%20Control%20the%20Spread%20of%20COVID-19%20%7C%20COVID-19&deliveryName=USCDC_2067-DM42632.

[11] "Cleaning and Disinfecting Your Facility," https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html.

[12] "Contact Tracing for COVID-19," https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/contact-tracing.html.

[13] Id.

[14] Id.; "Investigating a COVID-19 Case," https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/investigating-covid-19-case.html.

[15] "Contact Tracing for COVID-19," https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/contact-tracing.html.

[16] "Telework Before Illness Onset Among Symptomatic Adults Aged ≥18 Years With and Without COVID-19 in 11 Outpatient Health Care Facilities — United States, July 2020," https://www.cdc.gov/mmwr/volumes/69/wr/mm6944a4.htm?s_cid=mm6944a4_w.

[17] "Teleworking During The Coronavirus: Tips For Coping," https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/teleworking-during-coronavirus/art-20487369.

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