ACT Now: Employers Must Be Prepared for an Employee’s Report of Exposure to COVID-19 (Implementing Advance Contact Tracing)
March 29, 2020
For any employer that has gone through it, receiving news that one of your employees has been diagnosed with or was exposed to COVID-19 is a scary and revealing experience. What was once – even just 10 days ago – remote and hypothetical, immediately becomes real; raising urgent questions that require immediate, potentially-life-saving answers and actions.
Perhaps the most urgent of these questions involves “contact tracing” – the required process of identifying every individual who came into close or direct contact[1] with the infected individual in the workplace within the last 14 days so those individuals may self-quarantine, closely monitor themselves for possible symptoms, and otherwise take steps to help prevent setting off entirely new chains of transmission.
As employers look to implement critical mitigation strategies in accordance with guidance from the CDC (e.g., social distancing, limiting travel, staggering work schedules, regular health checks), employers must also give serious thought now to how contact tracing will be handled if, and when, an employee contracts (or likely contracted) COVID-19. Delay or uncertainty in creating a reliable and accurate “contact list” will delay efforts to notify employees that they should self-quarantine and closely monitor themselves for possible symptoms of COVID-19. In this crisis, employees are looking to their employers for information to help them make informed decisions about how they can protect themselves, their families and their communities. It’s an unprecedented moment for employers.
Employers who are not prepared to generate a comprehensive and accurate “contact list” immediately following a possible exposure have limited options. They are left with issuing vague exposure notices that provide little actionable information to employees and potentially exacerbate the fear and anxiety many workers are already experiencing. Such employers also face the risk that health authorities will recommend or require a prolonged closure of operations pending completion of a contact tracing investigation.
Current retroactive contact tracing efforts also suffer significant practical limitations – they depend on the collection of information after the fact, with all of the fallibilities that human memory and time can bring. Sorting through these challenges with relatively low level outbreaks may be manageable, but not so in the current global pandemic. The strain on already strained health authority resources is a recognized problem. In the healthcare setting, the CDC has already suspended its valuable, but resource consuming contact tracing efforts, with one CDC official recently explaining that “Dedicating resources to contact tracing and ‘retrospective risk assessment’ takes resources away from other critical infection prevention and control measures…”
So what can an employer do? One answer is surprisingly simple: set social distancing rules and then identify, limit, trace and audit employee contacts that do not comply with those social distancing rules before any diagnosis. A well-developed Advance Contact Tracing (“ACT”) program incorporated into an employer’s overall Pandemic Response Plan puts employers and employees in a rare position of control in these seemingly uncontrollable times. Here is one possible approach to rapidly establishing an ACT Now program:
Set Social Distancing Rules. First, consider whether your operation is subject to and able to comply with strict social distancing requirements. In some environments, it may be possible to achieve perfect compliance with rules such as those prohibiting employees from coming within 6 feet of each other for any prolonged period. (See, CDC’s “Consider establishing policies and practices for social distancing.”) However, it would be a potentially serious error to simply rely on the hope that individuals have perfectly adhered to strict social distancing as part of your pandemic response plan. Even in those workplaces where it is theoretically possible to achieve perfect compliance, human error, emergencies and unforeseen situations may lead to close or direct contact between coworkers and should be expected. An effective ACT Now program will take this into account.
Identify. Based on a careful assessment of your company’s physical sites, layout(s), organizational structure and processes, identify the expected or “presumptive” list of likely close or direct contacts that an employee may be expected to have throughout the day. The exercise need not be overly complicated. For most employers, the data needed to perform this exercise already exists in a readily sortable format; namely, in the company’s HR Information System (HRIS), which can be filtered by location, function, immediate supervisor or team lead. This exercise will also help identify administrative controls (e.g., policies or procedures) and engineering controls (e.g., partitions or barriers) that could be implemented to further enhance social distancing efforts. Engaging in this exercise before any exposure will also save valuable time if a future diagnosis occurs – providing an immediately available potential contact list that can be used in support of initial self-quarantine recommendations.
Limit. For those workplaces where direct or close contact is necessary and unavoidable (e.g., to safely perform a task), contacts should be limited to the smallest possible team. In establishing these teams, consider the potential impact of a positive diagnosis within the team --- all members of the team would be required to self-quarantine, so define teams with redundancy and continuity in mind. Don’t put everyone who can perform a critical function on the same team.
Expect the Expected --- Create Daily Exception Reporting: Establish an easy to use exception reporting process to trace contacts outside of the contact team or that otherwise violate the employer’s social distancing rules. A daily form (paper or electronic) at the end of the work day (for supervisors and/or individual employees) could work. A dedicated email box or even hotline number could be especially helpful. If done properly, employers need not roll out new or complex technological solutions, though such solutions could be effectively utilized (e.g., card swipe, security camera or other tracking or security systems).
Foster Voluntary Contact Reporting. Successful voluntary contact reporting depends on creating an environment where employees do not fear retaliation or adverse consequences to themselves or others for fully disclosing their contacts (See, the CDC’s “Maintain Healthy Business Operations”). Do not use voluntarily reported contacts as a basis for discipline (e.g., for violating social distancing rules). Consider how reports can be kept as confidential as possible to eliminate potential barriers to full disclosure (for example, an employee may be reluctant to tell a direct supervisor about contacts during the day with friends). Consider implementing comprehensive COVID-19 related leave benefits so employees will not worry that voluntary reporting will result in friends and colleagues being forced into leave without pay if an exposure occurs. For some employers (i.e., those with fewer than 500 employees), the cost of such benefits may be reimbursed under the Families First Coronavirus Act.
Communicate & Train. ACT Now is easy to communicate and train as part of an employer’s overall pandemic response program. The message is simple: (1) Maintain Social Distancing; and (2) Keep Calm and Track Close Contacts. Provide manager and supervisor training so they understand their roles and responsibilities in the process and can help effectively re-enforce the steps individual employees can and should take to reduce their risks of exposure.
Audit & Improve. Advance contact tracing data will be valuable on rolling 14-day day periods. The information should be reviewed regularly to ensure accuracy, including by conducting periodic interviews with supervisors and employees to validate the accuracy of the information. Of course, an effort should also be made after a diagnosis to also attempt to confirm the accuracy of the contact list with the patient (if they are available). The audit process will also help identify opportunities for improvement --- i.e., by identifying possible ways to reduce each employee’s direct or close contacts in the workplace, as recommended by the CDC. Finally, the audited ACT data may be helpful in determining whether a COVID-19 diagnosis resulted from a workplace exposure (triggering potential OSHA reporting obligations under 29 CFR 1904).
Polsinelli can assist in rapid implementation of an ACT Now program, including by helping to rapidly (in 24 hours) create and implement the needed policies, communications, exception reporting processes, training and audit procedures. This is something that employers can do now and improve on a rolling basis. Given the “slow, staged progression back to normalcy” expected in the current pandemic, an ACT Now program can be a valuable tool in the coming months as employers work toward an orderly return to daily life.
[1] Close contact is defined as: a) being within approximately 6 feet (2 meters), of a person with COVID-19 for a prolonged period of time (such as caring for or visiting a patient; or sitting within 6 feet of a patient in a healthcare waiting area or room); or b) having unprotected direct contact with infectious secretions or excretions of the patient (e.g., being coughed on, touching used tissues with a bare hand). https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-risk-assesment-hcp.html?deliveryName=FCP_8_DM21038
