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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

April 14, 2020

CDC and NYS Update COVID-19 Return-to-Work Criteria: Work, Test, Monitor, Protect, Repeat!

On April 8, the Centers for Disease Control and Prevention (CDC) updated its return-to-work criteria for health care personnel (HCP) with confirmed or suspected COVID-19. As part of its updated guidance, the CDC advises occupational health programs and public health officials to use a test-based or non-test-based strategy in determining whether an HCP may return to work following exposure to the virus.

Under the test-based strategy, HCP should be excluded from work until their fever is resolved without the use of fever-reducing medications, there is an improvement in respiratory symptoms, and the HCP receives negative results of a Food and Drug Administration emergency use authorized molecular assay for COVID-19 from at least two consecutive nasopharyngeal swab specimens collected more than 24 hours apart. A total of two negative specimens per HCP is required.

Using the alternative non-test-based strategy, HCP should be excluded from work until at least three days have passed since recovery and at least seven days have passed since symptoms first appeared. The CDC defines “recovery” as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms.

Once the HCP returns to work, in addition to adhering to hand and respiratory hygiene and cough etiquette, they are directed to wear a facemask at all times while in the health care facility until all symptoms are completely resolved or until 14 days after illness onset, whichever is longer. The CDC also advises that HCP be restricted from contact with severely immunocompromised patients, such as transplant and hematology-oncology patients, until at least 14 days after illness onset.

Additionally, on Sunday, NYS Governor Andrew Cuomo issued Executive Order 202.16, declaring that, as of 8:00 p.m. on Wednesday, any employees of essential businesses who are present in the workplace must be provided with and wear face coverings when in direct contact with customers or members of the public. Essential businesses are required to supply the face coverings at their own expense.

Aside from the immunities provided to health care facilities and professionals during COVID-19 under the Emergency or Disaster Treatment Protection Act, compliance with the CDC and NYS directives may be a provider’s best defense to claims of post-COVID-19 liability.

If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Team leader, at; Mary Connolly, associate, at; or another member of the firm’s Health Care Controversies Team.


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