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March 30, 2020

COVID-19: OPWDD Releases Guidance on Returning to Work After Infection

In response to the continued spread of COVID-19 gripping the state, the NYS Office for People With Developmental Disabilities (OPWDD) has released a series of guidance documents addressing return to work protocols for essential personnel and both clinical and direct support professionals (DSPs as well as protocols addressing releases for home isolation. As confirmed COVID-19 cases continue to appear, this guidance is critical for OPWDD-certified or operated providers that will likely have staff impacted by this public health crisis. 

Key Points 

In its “Protocols for Essential Personnel to Return to Work Following COVID-19 Exposure or Infection” document, the OPWDD addresses the ability of certain public and private organizations providing essential services or functions to allow personnel who have been exposed to or who are recovering from COVID-19 to work if doing so is necessary to maintain essential operations. Importantly, the OPWDD noted that this applies to OPWDD staff and administrators as well as other staff in OPWDD-certified settings. 

According to the guidance, essential personnel who have been exposed to a confirmed COVID-19 case may work in the required workplace setting so long as eight specific conditions—identified in the guidance—have been met. These conditions include requirements such as being asymptomatic, temperature monitoring, symptom checks, and the use of facemasks, among others. In instances where essential personnel has confirmed or suspected COVID-19, the personnel may be allowed to work if: 

  1. Working from home would adversely impact essential services or functions 
  2. The individual has maintained isolation for at least seven days after the onset (i.e., when symptoms first appeared), has been fever-free for at least 72 hours without the use of fever-reducing medications, and other symptoms have improved 
  3. The individual wears a facemask for 14 days following the onset of illness 

According to the OPWDD’s “Protocols for Clinical and DSPs to Return to Work,” OPWDD-certified or operated programs are permitted to allow clinical and DSPs and other facility staff to work after being exposed to a confirmed case of COVID-19 as long as seven conditions—identified in the advisory—have been met. 

For example, the clinical or DSP must be asymptomatic, maintain self-quarantine when not at work, and be assigned to individuals who are at low risk for complications, to the extent possible. Additionally, clinical or DSPs with confirmed or suspected COVID-19 may be permitted to work if six conditions—also identified in the advisory—have been met. Notably, many of these conditions are similar to those identified in the guidance for essential personnel, with the addition of requirements such as assignment to lower-risk individuals and maintaining self-isolation when not at work. 

Finally, the OPWDD also published “COVID-19 Release From Home Isolation,” which identifies requirements for releasing both symptomatic and asymptomatic individuals subject to isolation. The health advisory also clarifies that due to widespread and ongoing community transmission concerns, the OPWDD has adopted the Centers for Disease Control and Prevention’s (CDC) non-test-based strategy for release from mandatory home isolation. Providers are also directed to CDC guidance on releasing immunocompromised individuals from isolation and are required to discuss the release with the Department of Health (DOH) prior to any release occurring. 

Best Practices 

Providers should ensure they are aware of guidance from the DOH and CDC regarding the individuals they serve who are at greatest risk for complications from COVID-19. According to the OPWDD guidance, providers should take care to not assign exposed or confirmed staff to these high-risk individuals, to the extent possible. Nevertheless, the OPWDD has also acknowledged that these assignment restrictions may need to be changed as the COVID-19 pandemic continues to spread throughout New York State and other communities. 

Providers should also be aware of the OPWDD’s acknowledgement that clinical and DSPs who are out of work due to isolation or because the staff does not meet the conditions for returning to work qualify for paid sick leave benefits. Providers are instructed to provide staff with a letter confirming this if needed to be used by the clinical or DSP to demonstrate benefit eligibility. For more information on the changes to paid sick leave benefits stemming from COVID-19, providers can review our labor and employment alerts on the Families First Coronavirus Response Act and expansions to paid sick leave for quarantined employees in NYS

Notably absent from the guidance issued by the OPWDD, however, is direction on any notification obligations imposed on service providers. Therefore, questions such as whether providers are required to notify staff and the loved ones of the individuals served of suspected, exposed, or confirmed cases of COVID-19, what (if anything) this notification must entail, and if notification obligations differ depending on who the subject is still remain unresolved.

If you need any assistance regarding these guidance documents or responding to a confirmed or suspected case of COVID-19 in your agency, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com or another member of the firm’s Health Care & Human Service Practice Area.

We have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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