By Conn Maciel Carey’s COVID-19 Task Force
We want to alert you to a significant COVID-19 development out of the CDC yesterday. Specifically, the CDC just announced a material revision to its definition of “Close Contact.” The new definition makes it explicit that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes) should be assessed based on a cumulative amount of time over 24 hours, not just a single, continuous 15-minute interaction.
Here is the new definition included on the CDC’s website:
Close Contact – Someone who was 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.
* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.
CDC’s revised view of what constitutes a Close Contact is based on an exposure study at a correctional facility. Here is the CDC’s public notice about the correctional facility analysis. The analysis apparently revealed that virus was spread to a 20-year-old prison employee who interacted with individuals who later tested positive for the virus, after 22 interactions that took place over 17 minutes during an eight-hour shift.
An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine. Continue reading
BLR recently published a two piece article in the HR Daily Advisor by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding government agencies increased focus on whistleblowers and retaliation, and how employers can avoid whistleblower and retaliation complaints from their employees.
Over the past year, there have been significant changes in both the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) that make it easier for employees to demonstrate that an employer acted with retaliatory intent. Given this increased focus on retaliation, it is prudent for employers to take steps to avoid whistleblower and retaliation complaints from their employees, and ensure that they have adequate workplace policies and complaint systems to address retaliation complaints before an employee complaint lands before the EEOC or OSHA.
Part 1 of the article, titled “Preventing Whistleblowers in the Workplace: EEOC Expands the Rights of Whistleblowers,” focuses on how the EEOC has modified the standard it uses to evaluate retaliation claims, and has become more aggressive in its whistleblower enforcement efforts. Continue reading
On Tuesday, November 10, 2015, Eric J. Conn and Kara M. Maciel delivered a webinar regarding “Workplace Violence: No Longer Just a Police Issue.”
Every year, approximately 10% of workplace fatalities result from intentional violent acts. The prevalence of workplace violence is even more alarming when you take into account non-fatal assaults and threats of violence. This particular workplace hazard is uniquely challenging because the threat is often from outside the workplace, including non-employee third parties. Regardless, workplace violence has also become a hot button enforcement issue for OSHA, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts. Beyond OSHA, workplace violence can also implicate other employment laws. For example, if violent acts or threats occur because of symptoms of an employee’s disability, the handling of discipline and termination gets tricky under the ADA. Likewise, HR issues related background checks and negligent hiring could also contribute to civil liability.
Therefore, it is important for employers to develop and implement an effective Workplace Violence Prevention Program and appropriate hiring practices. This webinar advised employers about their legal obligations to address workplace violence and the implications if they fail to do so. It also provided employers with the knowledge and tools they need to develop a workplace violence prevention policy and training for employees to ensure they know what steps to take if an incident of workplace violence occurs.
Specific topics included:
- OSHA’s enforcement philosophy about workplace violence and enforcement under the General Duty Clause;
- When injuries that result from workplace violence must be reported to OSHA;
- Reference checking, negligent hiring and supervision obligations to avoid liability to employees or third parties injured from workplace violence;
- Employer obligations under the ADA, Title VII and state workers compensation laws; and
- Recommendations for a compliant workplace violence prevention policy and employee training.
Here is a link to a recording of the webinar, which includes the full audio with slides.
Now that the NLRB’s ambush election rules have taken effect and labor unions are able to take advantage of the significantly shortened time frame from the filing of a representation petition to the election, it has been questioned whether labor unions will continue to engage it its prior “corporate campaign” tactics to organize new workplaces. As employers have experienced from several different unions in the past decade, including UNITE HERE, UFCW, SEIU and others, labor organizers attack the corporation from outside threats in its attempt to persuade the employer to sign a card check or neutrality agreement, rather than resort to the traditional secret ballot election procedure. It’s akin to a death by a thousand cuts, and labor unions have found more success in organizing employees. One of the corporate campaign tactics includes involving outside regulatory state and federal agencies to investigate the workplace for potential regulatory violations.
In this post by my partner, Eric Conn, he explains how labor unions have accompanied OSHA investigators during on-site inspections, even in non-union workplaces, and what employers can do when presented with labor representatives.