Employers in Indiana and Illinois have a legal duty to protect workers from harm while the employees are on the job and this includes protecting against exposure to COVID-19. We have discussed the general duty of health and safety established under federal law, among other responsibilities placed by law for the protection of workers. See:
- Coronavirus Reopening in Indiana and Illinois: Duty of Care to Protect Employees against COVID-19 Exposure; and
- Coronavirus on the Job: Legal Standards for Employers to Protect Employees from COVID-19.
Duty to Keep Workers Safe on the Job
During the Coronavirus Pandemic, a great deal of attention has focused upon how employees should be shielded from exposure to the virus while on the work site. However, another aspect to the employers’ duty of care involves how companies are to respond when it is discovered that an employee, infected with the Coronavirus, has been on the job and working around others for any amount of time.
Here, the issue is not how to keep COVID-19 out of the workplace. Instead, it involves situations where the Coronavirus has entered the workplace and there has been “close contact” exposure between an infected employee and others on the job.
October 2020: CDC Changes Definition of Close Contact Exposure
Last month, the Centers for Disease Control and Prevention (CDC) provided an updated definition of “close contact” exposure to the Coronavirus. Before October 2020, “close contact” involved fifteen (15) consecutive minutes within six (6) feet of someone infected with the Coronavirus either within two (2) days before the onset of illness or at least two (2) days before testing for those who are asymptomatic.
According to the CDC, “close contact” is now defined as: 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.
The CDC has changed the definition of “close contact” from a single fifteen (15) minute exposure to a series of exposures within a twenty-four (24) hour period that add up to fifteen minutes.
The CDC also provides the following guidance regarding close contact (quoting the CDC):
- Individual exposures are added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes).
- Fifteen (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.
Employers’ Duty of Care for COVID Exposures within Work Force
For employers in Indiana and Illinois, this amended definition of “close contact” has an impact on how they are to meet their duty of care to their workers, keeping them safe from harm while at work.
Employers must consider the various factors provided by the CDC in October 2020, as well as its revised explanation of “close contact” regarding COVID-19, as part of the legal responsibilities toward their employees.
If an employee is found to have been exposed to the Coronavirus by an infected co-worker, whether that worker is ill or asymptomatic, then that employee should be quarantined for fourteen (14) days. This may mean that several employees will have to be in quarantine for two weeks, based upon confirmed “close contact” with the infected co-worker.
Masks, according to the CDC guidance, are not enough to avoid this disruption of the company work force.
Employers in Indiana and Illinois need to revisit their Coronavirus Pandemic safety plans and protocols to reflect the changes made by the CDC to “close contact” warnings.
Employers must be prepared to send workers home who may appear to be fine and healthy because of a cumulative fifteen (15) minute exposure to an infected co-worker over what might be a two-day time period during the workweek.
Employer Liability for Injury or Death from Coronavirus in Indiana or Illinois
Of course, for many businesses this new definition of “close contact” greatly increases the likelihood of operations being disrupted with lower output from the work force and a resulting dip in revenues.
It is not unreasonable to conclude that supervisors and managers may well fudge or outright ignore the need to tally even very short amounts of time to meet the new cumulative fifteen minute “close contact” definition.
When this occurs, workers and their loved ones who become ill with COVID-19 and suffer bodily injuries or even wrongful death due to the Coronavirus may have legal claims to bring against the employer for failing to meet the legally mandated duty of care during this unprecedented pandemic.
For more on COVID litigation involving employers, read:
- Coronavirus: Employer Liability for Worker’s Family Injuries Caused by COVID-19 Exposure
- COVID Whistleblowers: When Employers Recklessly Fail to Protect Against Coronavirus Exposure
- Coronavirus: COVID Violations, OSHA Inspections, and Employer Liability Claims in Indiana and Illinois
- Coronavirus: Federal Checklists for COVID Help Define Standards of Care for Businesses and Employers
- Coronavirus on the Job: Proving Employee Exposure Claims Against Employer for COVID-19 Injury.
If you or a loved one has been exposed to the Coronavirus while on the job and suffered harm as a result, then you may have legal claims for justice against the employer who breached its duty of care to provide a safe workplace. Please be careful out there!
