Youth Services Law

Business Waits for No One, Certainly Not Negative Tests: New CDC Guideline Obviate the Need for Retesting

Coronavirus

Based on previous guidelines and advice, many business owners are telling employees who have tested positive for COVID-19, to not return to work until they test negative. Sometimes, this means waiting weeks and even months. There are numerous reasons contributing to the problem. First, some patients test positive for weeks after full recovery and no longer being contagious. Second, scheduling a test is getting harder and results are taking longer and longer. Third, the tests being used are still unreliable, with the "quick" ones having the highest rates of false positives and false negatives. In the meantime, businesses are seeing an uptick in business, but cannot fulfill orders or client needs because they have no workers. Some have even had to shut down. It is very surprising, then, that the CDC's new guideline saying a negative test is not necessary has flown under the radar.

Quietly, on July 22, 2020, the CDC published on its website a research article/guideline saying that evidence supports ending isolation and precautions for persons with COVID-19 using a symptom-based strategy rather than a negative test. Specifically, the CDC said that patients who have experienced mild to moderate COVID-19 may discontinue isolation 10 days after symptom onset and resolution of fever for at least 24 hours, without the use of fever-reducing medications, and with improvement of other symptoms. With respect to people who tested positive, but were asymptomatic, the CDC said "isolation and other precautions can be discontinued 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.” In terms of people with more severe to critical illness or severe immunocompromised, they may remain infectious for longer than 10 days, but no more than 20 days after symptom onset. Importantly, these guidelines apply only to those who have tested positive, not those who have been exposed and have been told to quarantine. The consensus still is that COVID-19 has a 14 day incubation period, and those who know that they have been exposed should wait at least that long to see if they develop symptoms.

So what should employers do? While a negative test can afford you with the greatest defense in litigation and the court of public opinion (which should not be discounted in today's climate), to the extent waiting on retesting is not practical or affordable, these guidelines may assist you getting employees back to work faster. Just be careful in terms of developing or revising a COVID-19-return-to-work policy in a vacuum – remember that most if not all COVID-19 issues may trigger employer liability under the ADA, FMLA, FFCRA, HIPAA, and other federal, state, and local statutes.

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