As New York State businesses begin to reopen – a process we have detailed here – Empire State employers will increasingly be required to make decisions with respect to returning employees to the workplace who were suspected or confirmed to be infected with, or exposed to, COVID-19. To assist the business community, the New York State Department of Health (DOH) recently published interim guidance for employers in this regard (the Interim Guidance). Critically, the Interim Guidance applies to all New York employers and employees (with the exception of health care or nursing home professionals) – regardless of their industry or phase of reopening, or whether they are or were considered an “essential” business. Below is a summary of the Interim Guidance.

Updated exposure and infection protocols for all Empire State employees

To start, the Interim Guidance sets forth several recommended precautionary steps for employers to take before allowing an employee infected with or exposed to COVID-19 to return to the workplace, including the following:

  1. Employees who have tested positive for COVID-19 (regardless of whether the employee is symptomatic or asymptomatic) may return to work after at least 10 days of isolation (1) from the onset of symptoms or (2) after the first positive test if they remain asymptomatic.
  2. Employees (1) who have had “close or proximate contact” (definition below) with a person infected with COVID-19 for a prolonged period of time and (2) who are experiencing COVID-19 related symptoms, may return to work after at least 10 days of isolation from the onset of symptoms.
  3. Employees (1) who have had close or proximate contact with a person with COVID-19 for a prolonged period of time and (2) who are not experiencing COVID-19-related symptoms may return to work after completing 14 days of self-quarantine. There are limited exceptions to this recommendation for critical or essential workers, as noted in more detail below.
  4. Employees who, absent close or proximate contact with a person with COVID-19 symptoms, (1) exhibit symptoms associated with COVID-19 upon arriving at work or (2) become sick with COVID-19 symptoms while at work must be separated and sent home immediately and may only return to work after completing at least 10 days of isolation from the onset of symptoms, or upon receipt of one negative COVID-19 test result.

The DOH defines “close contact” as being within six feet of an infected person for at least 10 minutes during the period beginning 48 hours before the individual’s onset of illness until the individual was isolated. Employees who are unsure of the extent of their contact with someone suspected or confirmed to have COVID-19 are instructed to contact their local health department for clarification.

One “critical” exception to the exposure and infection protocols

With respect to scenario 3 above, the Interim Guidance provides an exception for employees deemed essential and critical for the operation or safety of the workplace (meaning that such employees do not need to complete 14 days of self-isolation before returning to work). These employees – so long as they are exposed asymptomatic employees – may return to work as long as the following protocols are followed prior to and during their work shift:

  1. Regular monitoring: under the supervision of the employer’s occupational health program, the employee must self-monitor every 12 hours for (1) a temperature of 100⁰ Fahrenheit or more and (2) symptoms consistent with COVID-19.
  2.  Wearing a mask: the employee must wear a mask at all times while in the workplace for 14 days after the last exposure..
  3. Social distancing: the employee must continue social distancing practices, including maintaining a distance of at least six feet from others.
  4. Cleaning and disinfecting workspaces: the employer must continuously and regularly clean and disinfect all areas, including offices, bathrooms, common areas, and shared electronic equipment.
  5. Maintain quarantine: the employee must continue to self-quarantine and self-monitor for temperature and symptoms when not at the workplace, for 14 days after the last exposure.

Each of the enumerated steps above should be monitored and documented by the employer and employee on a regular basis (that is, daily and before and after each shift). And employers, in consultation with state and local health authorities, must document the determination that the employee is essential or critical.

Both recently reopened and soon-to-reopen employers, as well as “essential” businesses that have remained open throughout the pandemic, should ensure that their current practices for returning employees to the workplace – including safety plans – meet the recommendations outlined in the Interim Guidance. In addition, employers should clearly communicate these protocols to all employees in order to promote compliance. If you have any questions or concerns about the Interim Guidance or how it affects your company, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.