Expansion of Close Contact: Drastic Impact on Calculating Exposure to COVID-19

11.05.2020

Cities, counties, housing authorities, transit agencies, water districts, and other special districts (“public employers”) have begun to return employees to the physical workplace, despite the ongoing COVID-19 pandemic. Public employers have had to grapple with a host of workplace safety measures to address the public health risk posed by COVID-19, as the close proximity of employees in work facilities increases the risk of exposure to the virus. Public health authorities have required or recommended several strategies to lower the level of risk, including face-coverings, social distancing, travel guidelines, and more expansive cleaning and disinfecting protocols. For example, the Centers for Disease Control and Prevention (“CDC”) recommends that public employers notify employees if they have been in contact with and/or exposed to an individual who tested positive for COVID-19. Many of these workplace safety measures require public employers to determine if an employee who tested positive for COVID-19 came into “close contact” with other employees in the workplace.

The CDC recently updated its definition of “close contact” to include a far more expansive period of interaction, requiring public employers to recalibrate their contact tracing efforts and raising critical concerns. This Alert shall explore the practical effects of, and the concerns raised by, this change.

Change in Definition of “Close Contact”
The CDC initially defined “close contact” to mean someone who was within six (6) feet of a person infected with COVID-19 for a period of 15 continuous minutes or more. On October 21, 2020, the CDC revised its definition of “close contact” to mean:

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.

This revision chiefly involves an expansion of the relevant time period, from the 15 (or more) continuous minute period to 15 cumulative minutes over a 24-hour period. The CDC provided guidance on how to view this change:

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.

The CDC also indicated that several particular factors affect calculations of “close contact”, such as:

• Proximity, closer distance likely increases exposure risk;
• The duration of exposure, as 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).

Finally, the CDC noted that they do not recommend taking an individual’s use of “fabric face coverings” into account when calculating whether “close contact” has occurred. The CDC explained that the use of face coverings should not affect a determination of whether “close contact” occurred, because “the general public has not received training on proper selection and use of respiratory PPE.” Given the increased burden imposed on employers to determine if employees were in “close contact” with an infected individual over a 24-hour period of time, it is helpful to remove the variable of “face covering” use from this calculus.

California’s Department of Public Health (“CDPH”) updated its page on contact tracing to align with the CDC’s changed definition of what constitutes “close contact.” The CDPH also indicated that “close contact” occurred if an individual:

• Provided care at home to someone who is sick with COVID-19;
• Had direct physical contact with the person, e.g. a physical embrace such as hugging or kissing;
• Shared eating or drinking utensils; and
• Sneezed, coughed, or somehow got respiratory droplets on the person.

Impact of Change on Contact Tracing and Reporting Requirements
The CDC’s change will impact numerous aspects of a public employer’s operations, and raise corresponding concerns. First, public employers will need to expend more resources to conduct contact tracing, and determine which employees were within six (6) feet of an infected individual for a cumulative period of 15 minutes or more over a 24-hour period. This calculation may prove difficult for public employees assigned to work outdoors, at multiple work-sites, and/or in work areas with higher concentrations of individuals. For example, public employees at hospitals frequently have repeating interactions with numerous parties, including patients or members of the general public, which may total over 15 minutes in the course of a single day. These practical effects will require public employers to increase the efficiency of their contact tracing efforts for employees with regular interaction with numerous parties, including non-employees.

Second, public employers will need to balance its tracing of “close contact” among employees, with its imminent COVID-19 reporting requirements imposed by Assembly Bill (“AB”) 685. Starting January 1, 2021, AB 685 will require public employers to notify employees in the event an employee is on the same work premises as an individual who tested positive for COVID-19 or is diagnosed with the virus. By January 1, 2021, public employers must not only calculate whether an infected employee was in “close contact” with other employees, but notify all employees who were present at the worksite regardless of whether there was “close contact.” While overlapping, these different standards will require public employers to ensure staff and management are trained on these separate obligations. For more detail on AB 685, please review our prior alert.

Third, public employers should consider revising their COVID-19-related policies to explicitly notify employees about this change, and put them on notice about the need for them to report “close contact” with other persons over a 24-hour period of time. Public employers will need to rely on employees and managers to complete contact tracing, and determine whether “close contact” has occurred on this much wider scale. For a broader discussion on the challenges involved in contact tracing, please review our prior alert.

Fourth, the expanded reach of “close contact” tracing will increase the potential for inaccurate results. In response, public employers could seek to enhance “close contact” tracing by referring to employee timecards or video records in order to investigate an employee’s network of interactions (or confirm reported interactions). For example, public employers could consult pre-existing video surveillance records to verify employee reports of “close contact”, such as video camera systems installed in police stations or on public transit bus vehicles. However, these efforts to increase the efficiency or accuracy of contact tracing may raise different issues, including privacy concerns, collective bargaining obligations, and others. Similarly, if infected employees signed waivers of confidentiality protections under the Americans with Disabilities Act, public employers would be able to share a positive diagnosis or test with other employees. This would increase the speed and accuracy of contact tracing of “close contact.” However, waiver forms in the context of the present pandemic are unproven and pose numerous potential challenges. We recommend that public employers consult counsel before proceeding with this option.

Fifth, public employers may need to recalibrate their staffing practices, given that the expanded “close contact” definition could result in a larger number of employees being sent home to self-quarantine due to potential exposure. Hybrid work schedules, or other measures resulting in lower numbers of employees reporting to physical worksites, may lessen the impact of this change. Further, public employers may want to reconsider whether to exercise greater flexibility in the number of employees permitted to work remotely.

We encourage public employers to carefully review federal, state, and local public health guidance on contact tracing and “close contact” determinations. Public health guidance on the various aspects of the present pandemic is updated frequently and subject to change. Please feel free to reach out to the Authors of this Alert or your regular AALRR counsel with questions relating to contact tracing.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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