The U.S. Centers for Disease Control and Prevention (CDC) recently released new guidance (the Guidance) and a flowchart (the Flowchart) detailing how states can safely reopen businesses and schools in the wake of the COVID-19 pandemic. The 60-page guidance document covers a wide range of topics, including surveilling, contact tracing, and controlling COVID-19 cases.
The Guidance provides generalized recommendations, while simultaneously cautioning employers to tailor the Guidance based on the state and industry within which the employer operates. For each set of recommendations, the CDC creates a three-step program to safely scale up operations, with Step One requiring the most stringent measures of mitigation and Step Three requiring the least. The Guidance also provides more specific recommendations that highlight additional considerations for reopening mass transit, childcare programs, day camps, restaurants, and bars, as well as businesses that employ workers at high risk for severe illness due to COVID-19.
Workplace reopening decision tool flowchart
In addition to the Guidance, the CDC created a Flowchart to assist employers in deciding whether they can safely reopen. At each level, the Flowchart poses a series of questions that become increasingly specific and direct employers to a “yes” or “no” answer about their readiness to reopen.
For example, in the first stage, employers are asked whether reopening is consistent with applicable state and local orders and whether the employer is ready to protect their high-risk employees. If the answer to either question is “no,” the employer is directed not to open; affirmative answers to both questions direct the employer to the next stage of questions, which concern recommended health and safety actions and ongoing monitoring of COVID-19. The Flowchart helpfully provides hyperlinks to each of the CDC’s guidance documents with respect to each topic addressed.
Guidance for employers with workers at high risk for severe illness from COVID-19
The CDC classifies the following as workers at higher risk for severe illness from COVID-19 as (1) individuals over the age of 65 and (2) those with underlying medical conditions (including chronic lung disease, moderate to severe asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease that requires dialysis). While the CDC urges high-risk workers to self-identify to employers, it also cautions employers from making unnecessary medical inquiries about these conditions and reminds employers of their obligations under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).
To protect workers from exposure, the CDC recommends a series of sub-steps to address promoting healthy hygiene practices; increased cleaning, disinfecting, ventilation, and social distancing; limiting travel; modifying commuting practices; checking regularly for signs and symptoms of infection; planning for the possibility of an employee becoming sick; maintaining flexible leave policies to allow sick and high-risk employees to stay home; and closing the workplace in response to an outbreak. Employers should carefully review the new Guidance to ensure the implementation of best practices for reopening in the coming weeks and months.
Although the CDC has provided these guidelines on reopening, employers must still use their discretion as to whether the decision to reopen is the right one for their continued operations. In doing so, employers must consider myriad factors, such as their physical location, the makeup of their workforce, the nature of the services they provide, and their ability to allow employees to telework. For further information about the new Guidance, or for any additional questions, employers should contact their Reed Smith attorney or one of the knowledgeable attorneys in Reed Smith’s experienced Labor & Employment Group.