To help our clients navigate the coronavirus (COVID-19) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, April 10, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
The New York State Department of Health (the “DOH”) recently issued updated Protocols for Essential Personnel to Return to Work Following COVID-19 Exposure or Infection. This document provides guidance concerning when exposed and/or infected employees can safely return to work and can be found here.
Specifically, in its guidance, the DOH advised that municipalities may allow essential employees who were exposed to or are recovering from COVID-19 to return to work if needed to perform critical functions, including infrastructure, public safety, and other essential operations. Essential services or functions include, but are not limited to, utility and water operations, transportation infrastructure, law enforcement, and emergency response.
Concerning essential employees who have been exposed to a confirmed or suspected case of COVID-19, the guidance provides that these employees may be permitted to work in the required workplace setting if all of the following conditions are met:
- Working from home would not be feasible for job duties;
- The employees are asymptomatic;
- The employees quarantine themselves when not at work;
- The employees undergo temperature monitoring and symptom checks upon arrival to work and at least every 12 hours while at work, and self-monitor twice a day when at home;
- Employees required to interact with individuals within 6 feet should wear a facemask while working for 14 days following the last exposure;
- Employees whose job duties permit a separation of greater than 6 feet should have environmental controls in place to ensure adequate separation is maintained, and do not need to wear a facemask;
- If the employees develop symptoms consistent with COVID-19 while working, they should immediately stop work and isolate at home; and
- Testing should be prioritized for essential employees with symptoms.
Concerning essential employees who are confirmed or suspected to have COVID-19, the guidance provides that these employees may be permitted to work in the required workplace setting if all of the following conditions are met:
- Working from home would adversely impact essential services or functions, including critical public health and public works infrastructure in New York or the response to the COVID-19 public health emergency;
- The employees have maintained isolation for at least 7 days after illness onset and have not had a fever for at least 72 hours, without the use of fever reducing medications, and with other symptoms improving; and
- Employees who are recovering from COVID-19, and return to work, must wear a facemask for 14 days following onset of illness.
The DOH has also issued guidance concerning when other employees who are not classified as “essential” under the above definition may return to work following a COVID-19 infection, which can be found Here. Such employees would be required to maintain a home quarantine/isolation until the employee meets the DOH’s Clearance Criteria outlined below:
For employees who have tested positive for COVID-19 and have fever, cough, shortness of breath/difficulty breathing, all 3 Clearance Criteria below must be satisfied for the employee to return to work:
- It’s been at least 7 days since employees first started experiencing symptoms;
- The employees have not had a fever in at least 3 days, without taking fever-reducing medication;
- Any shortness of breath/coughing/difficulty breathing has improved.
For employees who have tested positive for COVDI-19 but do not have the above symptoms, both the below Clearance Criteria must be satisfied for the employee to return to work:
- It’s been at least 7 days since employees had their first positive COVID-19 test;
- The employees have not had any subsequent illness.
If the employer requires proof that the COVID-19 exposed or infected employees are eligible to return to work, employees may request a letter here. Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Municipal Law Practice Group with questions regarding specific situations. If there are any developments on this topic, we will provide an update. For questions on employment and labor issues contact Jaclyn G. Goldberg or Lance H. Klein and on general municipal issues contact Nicholas M. Ward-Willis or Drew Victoria Gamils or any other attorney in our Municipal Law Practice Group.