CDC and Iowa Guidelines After COVID-19 Exposure Now Conflict: Which Should Iowa Employers Follow?
At a press conference on September 29, 2020, Iowa Governor Kim Reynolds announced the Iowa Department of Public Health (IDPH) had issued new guidance regarding when Iowans should quarantine after exposure to COVID-19 and how long they should self-isolate when they are COVID-19 positive. It comes in the form of a one-page picture poster, cryptically dated “September 2020.” The new IDPH guidelines apply to businesses, educational facilities, and child care settings, but not those in healthcare or residential settings.
Some of the IDPH’s new guidance follows current recommendations of the federal Centers for Disease Control (CDC), but other parts do not. States often adopt laws, regulations, and guidelines that are more protective than those of the federal government, and employers are required to follow the most protective law or guidance. Here, the tables are turned. Where the September 2020 IDPH guidelines vary from those of the CDC, Iowa’s are less protective. This is an unusual situation for employers. Do Iowa employers dare follow the IDPH guidance and reduce their responses to COVID-19 exposures and positive cases? Is that wise when Iowa is still in the White House Coronavirus Task Force’s “red zone?”
The first step to making a decision is understanding the issues, the choices, and risks involved. Below we compare the IDPH and CDC guidelines on how long to isolate COVID-positive persons, as well as whether, when, and how long to quarantine persons exposed to COVID-19.
Mandatory or Permissive
The new IDPH poster uses words like “required” and “must,” suggesting it summarizes mandatory rules with the force of law. That is not the case. It clearly was not promulgated in compliance with the rule-making provisions of the Iowa Administrative Procedures Act. In contrast, the CDC’s guidelines use words and phrases like “may” and “should,” which is what one would expect from agency guidance that does not have the force of law.
Close Contact (Exposure)
The IDPH defines “close contact” as being within six feet of a COVID-19 positive individual for 15 minutes. The CDC agrees with that, but is a little clearer in its definition, saying “15 minutes or more.” That may be implied in Iowa’s guide. However, the CDC’s definition of “close contact” includes additional circumstances of close contact that are not included in the IDPH’s new poster guide. Those include providing care at home for someone sick with COVID-19, having direct physical contact with someone with COVID-19 (e.g., hug, kiss), sharing eating utensils or drinking vessels with someone with COVID-19, and when a positive person sneezes, coughs, or otherwise gets respiratory droplets on you.
Quarantine and Isolate
In general, IDPH’s pre-COVID-19 regulations on communicable diseases appear to use the terms “quarantine” and “isolate” together, without distinguishing them. We could find nothing on the IDPH’s COVID-19 website defining the terms; there is no definition on the one-page poster issued on 9/29/2020. Presumably, the IDPH uses the CDC’s definitions of “quarantine” and “isolate” when it comes to COVID-19, which are as follows:
- “Quarantine” means to separate and restrict the movement of people who were exposed, or who might have been exposed, to COVID-19 from others to see if they become sick. People in quarantine should stay home, separate themselves from others, monitor their health, and follow directions from their state or local health department.
- “Isolate” involves separating persons with COVID-19 from people who are not sick, including having the positive person stay away from others living in the same home.
Isolation for Those Who Are COVID-Positive
Persons who have tested positive for COVID-19 or who have symptoms of COVID-19 are to self-isolate, according to both state and federal guidelines. IDPH calls for ending self-isolation after 10 days, but does not say when that period of 10 days begins. The CDC requires three conditions for ending self-isolation for a positive test, which include when the 10 days should begin: (1) passage of 10 days since symptoms first appeared or the date the test sample was taken, and (2) at least 24 hours without a fever while not using fever-reducing medications, and (3) improvement in other symptoms of COVID-19 (except the loss of taste and smell that can last longer).
Quarantine for Those in Close Contact with a COVID-Positive Person
CDC guidelines recommend a 14-day quarantine for those who came into close contact with a person who has COVID-19, whether anyone involved wore masks or not, which begins on the last contact with the positive person. The IDPH’s new quarantine requirements for persons in close contact to COVID-19 depend on the relationship between the exposed and positive persons, and on who wore masks during the close contact (exposure).
- If the exposed person was in close contact with a positive person because they live in the same household, the exposed person is “required” (that is the word used) to quarantine for at least 14 days. IDPH’s poster does not say when the 14-day period should begin.
- If the exposed person consistently and correctly wore a mask during the close contact, but the positive person did not, then the exposed person is to quarantine. The poster is not clear about the length of the quarantine when there is no household relationship, or when the quarantine should begin. It implies a 14-day quarantine, and we presume that would begin on the day of the last contact with the positive person.
- The next scenario flips the script, but has the same result. If the exposed person did not consistently and correctly wear a mask during the close contact, but the positive person did, the exposed person must be quarantined. We presume the length of the quarantine is 14 days, beginning with the date of the last contact with the positive person.
- Finally, if no one consistently and correctly wore a mask during the close contact, then the exposed person(s) are to quarantine. Again, we presume the length of the quarantine is 14 days, beginning with the date of the last contact with the positive person.
Self-Monitoring After Close Contact with a COVID-Positive Person
The IDPH recommends only “self-monitoring” if the positive person consistently and correctly wore a mask during the close contact, and the exposed person(s) did too. While the positive person always needs to self-isolate, this means exposed persons do not have to quarantine at all. The CDC, on the other hand, does not recommend mere self-monitoring after any close contact with a COVID-positive person, masks or no masks.
We could not find a general definition or direction on either the CDC’s or the IDPH’s websites about what non-healthcare workers are to do to “self-monitor.” The CDC explains what health care providers should do to self-monitor for COVID-19, which includes checking one’s temperature twice per day, remaining alert for respiratory symptoms, and having a plan for who to contact if symptoms occur. Presumably, non-health care providers can or should follow this direction for self-monitoring.
Some Unanswered Questions
While the IDPH poster states that a person positive for COVID-19 who has had close contact with a household member is “required” to quarantine for 14 days, it is silent on what is required or suggested if the exposure is to a person not a household member. As shown in our comparisons above, we assumed the quarantine period for non-household members was still 14 days. While that may be logical, one wonders why IDPH didn’t say that, but rather made a specific statement on members of a household.
The new IDPH guidance also does not indicate exactly when a 14 day quarantine period, or a 10 day isolation period, begins—as pointed out, above. The CDC is clear about the start of quarantine and isolation period, even using examples and calendars, which employers would be wise to follow.
The decision to follow federal or state guidance matters to employers for human, community, and various business concerns. One of those business concerns is legal liability. The federal Occupational Safety and Health Act’s (Act) general duty clause, at Section 5(a)(1), requires employers to furnish each employee a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Hazards include COVID-19. The federal Occupational Safety and Health Administration (OSHA) has been criticized for not adopting regulations regarding COVID-19, and for only issuing guidance that defers to the CDC.
States with an OSHA-approved state plan – like Iowa – adopt their own workplace safety laws and regulations, but those must comply with the Act and not be less protective. Iowa’s law has a general duty clause at Iowa Code Section 88.4. Like the federal Act, it requires Iowa employers to provide a safe workplace, free of known hazards. Iowa OSHA has not issued any COVID-19 guidance of its own, either, but it has a webpage listing materials issued by the federal Department of Labor, federal OSHA, and the CDC.
Because both OSHA and IOSHA rely upon CDC guidance, employers have been well-advised to comply with what the CDC says about how to handle employees who test positive or who are exposed to COVID-19. Now, however, many Iowa employers are faced with a dilemma. Should they continue to follow the CDC’s stricter guidance? Or should they switch to the more lenient guidance just issued by IDPH? The latter may ease the strain on business operations due to absences of employees exposed to COVID-19 (and those repeatedly exposed) and employees who are COVID-19 positive, but it appears to be the riskier of the two options.
Iowa’s COVID-19 Immunity Law
A new Iowa law called the COVID-19 Response and Back-to-Business Limited Liability Act, effective retroactively to January 1, 2020, should be considered when making this choice. New Iowa Code Chapter 686D establishes a safe harbor defense for Iowa employers sued in a civil action over inviting or permitting a person onto their premises who exposed others to COVID-19. Specifically, Section 686D.5 states:
A person [“persons” include businesses and individuals] in this state shall not be held liable for civil damages for any injuries sustained from exposure or potential exposure to COVID-19 if the act or omission alleged to violate the duty of care was in substantial compliance or was consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19 that was applicable to the person or activity at issue at the time of the alleged exposure or potential exposure.
The underlined portions of this statute suggest an Iowa employer could follow either the CDC or the IDPH guidance and still take advantage of this safe harbor. But the law has virtually no legislative history, and Iowa courts have not construed what employers must do if Iowa has state public health guidance that is less protective than that of the federal government. (A situation that may not have been contemplated by the Iowa Legislature when the legislation was passed.)
One thing is clear. An Iowa employer considering adopting the new IDPH guidance, rather than adhering to CDC guidance, should consult competent legal counsel.
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