By: Max E. Dehn & Madilyn M. Maruna

         

This article is for general informational purposes, and is not intended to provide medical advice.  Nor does it provide legal advice concerning any specific situation.  Please call a Cavitch attorney if you have questions concerning this or any COVID-19 related legal matter.

An employee reports that he/she has been diagnosed with or exposed to COVID-19.  When can the employee safely return to work?  Earlier during this epidemic, 14 days after an employees’ symptoms subside was the standard.  Now, the CDC is recommending less stringent standards.  Below, we discuss recent CDC guidance for an employee returning to work after COVID-19 exposure, as well as the potential future of COVID-19 testing in the workplace.

Return to Work Best Practices Under CDC Guidance

An employee has been exposed to COVID-19, but is asymptomatic.  Can the employee continue to safely come to work?

Yes, provided the employee remains asymptomatic and additional precautions are implemented to protect them, co-workers, and the community at large.  These include:

• Pre-Screen: Measure the employee’s temperature before the employee starts work.
• Regular Monitoring: As long as the employee does not have symptoms, he/she should self-monitor under the supervision of an employer’s occupational health program.
• Wear a Mask: The employee should wear a face mask at all times in the workplace for 14 days after exposure.
• Social Distance: The employee should adhere to standard COVID-19 social distancing requirements in the workplace, e., maintain 6-foot distance from co-workers.
• Disinfect and Clean Workspaces: Clean and disinfect all areas such as offices, bathrooms, common areas, and shared electronic equipment routinely.

If the employee becomes sick during the workday, the employee should be sent home immediately.  For more information, see the CDC guidance for safety practices for Critical Infrastructure Workers.

If an employee has symptoms of COVID-19, when can they safely return to work?

According to CDC “Discontinuation of Isolation” guidance in non-healthcare settings, persons who have symptoms of COVID-19 and were directed to care for themselves at home may discontinue isolation under the following conditions:

• At least 3 days (72 hours) have passed since recovery defined as resolution of fever without fever reducing medicine;
• Improvement of respiratory symptoms; and
• At least 10 days have passed since symptoms first appeared.

An employee has no symptoms of COVID-19, but has laboratory-confirmed COVID-19.  When can the employee safely return to work?

According to CDC guidance, a person who has a confirmed case of COVID-19, but does not have symptoms, can return to work under the following conditions:

• At least 10 days have passed since the employee’s first positive COVID-19 diagnostic, the employee has no subsequent illness, and the employee remains asymptomatic.

Employers should remain up-to-date on all guidance issued by the CDC, including the current COVID-19 CDC Guidance in Non-Healthcare Settings for Businesses and Employers.  The CDC issued separate Guidance in Healthcare Settings.

Rapid COVID-19 Testing: Antibody Tests

In response to the COVID-19 epidemic the FDA has established an Emergency Use Authorization (EUA) application and approval process with regard to COVID-19 testing kits.  Specifically, companies can sell antibody test kits if they obtain a Letter of Authorization from the FDA.  However, the availability of these tests is limited in Northeast Ohio, and the quality of results remains uncertain. 

Antibody tests are serological, and use a small amount of blood, plasma, or serum to detect antibodies produced when the body is exposed to COVID-19.  The test gives one of three results:

• You were exposed to COVID-19 in the past, as evidenced by the presence of the IgG antibody. In this case, you may safely return to work.
• You are currently infected, as evidenced by the presence of the IgM antibody. In this case, you may return to work only after following the return to work procedures discussed above, depending on individual circumstances.
• You’ve never been exposed to COVID-19 and do not have antibodies. You may safely work under current safety guidelines (e.g. social distancing).

These antibody tests can produce results in as little as 15 minutes.  But their availability in Northeast Ohio is limited, and their effectiveness has not been vetted through normal FDA standards. A number of companies have developed antibody tests, and have received FDA approval under its Emergency Use Authorization (“EUA”) designation.  The FDA website has a list of currently approved test kit manufacturers and laboratories is provided here.  Additionally, FDA FAQs regarding EUAs are here.

Currently, the use of these antibody tests is limited to laboratories and point-of-care locations.  They are not approved for at-home use, and employers cannot administer these tests to their employees at their places of business.  Additionally, there are tests now on the market that have not received even expedited approval from the FDA.  And even approved tests have not undergone traditional FDA vetting for accuracy.

Although there is still much work to be done surrounding these antibody tests, they may become an important tool for employers to manage their workforce during the COVID-19 epidemic.