New York Updates Return-To-Work Protocols for Healthcare Personnel

​The New York Department of Health has circulated a revised advisory on return-to-work protocols for healthcare personnel after infection or exposure to COVID-19. The new protocols, dated Nov. 30, will supersede the department's earlier protocols, dated Feb. 4, and align New York with the current recommendations issued by the Centers for Disease Control and Prevention (CDC).

The department's advisory, which has been circulated to providers, but not yet posted to the department's COVID-19 Guidance Repository, includes protocols for returning to work, largely dependent on whether the healthcare facility is operating under conventional, contingency or crisis strategies to mitigate staffing shortages.

Asymptomatic healthcare personnel who were exposed to COVID-19 will no longer need to undergo work restrictions, including quarantines, based on vaccination status. However, per the CDC guidance, personnel who have had a "higher-risk exposure" to COVID-19 should be evaluated for potential work restrictions.

After Infection

Healthcare personnel with mild to moderate illness who are not immunocompromised can return to work after:

• At least seven days have passed since symptoms first appeared, if a negative viral test is obtained within 48 hours prior to returning to work (or 10 days if testing is not performed, or if testing positive at day 5-7).
• At least 24 hours have passed since last fever without the use of fever-reducing medications.
• Symptoms like cough or shortness of breath have improved.
  

Healthcare personnel who were asymptomatic throughout their infection and are not immunocompromised can return to work after at least seven days have passed since the date of their first positive viral test, if a negative viral test is obtained within 48 hours prior to returning to work (or 10 days if testing is not performed, or if testing positive at day 5-7).

Healthcare personnel with severe to critical illness who are not immunocompromised can return to work after:

• At least 10 days and up to 20 days have passed since symptoms first appeared.
• At least 24 hours have passed since last fever without the use of fever-reducing medications.
• Symptoms have improved.
  

The test-based strategy set forth in the CDC guidance for immunocompromised healthcare personnel can be used to inform the duration of work restriction. Healthcare personnel who are moderately to severely immunocompromised may return to work after using the test-based strategy. Consultation with an infectious disease specialist or other expert and an occupational health specialist is recommended to determine when these healthcare personnel may return to work.

After Exposure

Work restrictions are not necessary for most asymptomatic healthcare personnel following a "higher-risk exposure," regardless of vaccination status. A "higher-risk exposure" occurs when:

• Healthcare worker had prolonged close contact with a patient, visitor or other healthcare personnel with a confirmed case of COVID-19.
• There was exposure to the healthcare provider's eyes, nose, or mouth to material containing the COVID-19 virus.
• Healthcare worker was not wearing a respirator (or if wearing a facemask, the person with the infection was not wearing a facemask).
• Healthcare worker was not wearing eye protection, and the person with the infection was not wearing a facemask.
• Healthcare worker was not wearing all recommended PPE (i.e., gown, gloves, eye protection, respirator) while present in the room for an aerosol-generating procedure.
  

A case-by-case analysis should be considered by any healthcare provider seeking to immediately return to work healthcare personnel who have had a high-risk exposure. If a work restriction is recommended for a high-risk exposure, healthcare personnel can return to work after either of the following time periods:

• After day seven, following the exposure, if they do not develop symptoms and all viral testing is negative.
• If viral testing is not performed, after day 10 following the exposure, if they do not develop symptoms.

After returning to work from an infection or high-risk exposure, healthcare personnel should self-monitor for symptoms and seek reevaluation if symptoms recur or worsen. In the event symptoms recur, healthcare personnel should be restricted from work and follow recommended practices to prevent transmission until they meet the criteria to return to work.

Contingency Strategies

Contingency strategies should be observed when the facility anticipates staffing shortages. Facilities observing contingency strategies may allow healthcare personnel to return to work despite not meeting the general criteria.

Healthcare personnel who were asymptomatic throughout their infection and are not immunocompromised may return to work if at least five days have passed since the date of their first positive viral test. Healthcare personnel with mild to moderate illness who are not immunocompromised may return to work if at least five days have passed since symptoms first appeared, at least 24 hours have passed since the last fever without the use of fever-reducing medications, and symptoms have improved.

Healthcare personnel permitted to return to work under these exceptions should wear a well-fitting facemask at all times, separate themselves from others when they need to remove the facemask, and practice physical distancing to the extent practicable.

Crisis strategies may be implemented only if the facility has an actual or anticipated inability to provide essential patient services, despite instituting contingency strategies. Before implementing crisis strategies, the facility must notify the department of the need to move to crisis status, implement strategies to mitigate staffing shortages, and ensure that the criteria for identifying high-risk personnel exposures are applied properly.

As a last resort, facilities may consider allowing personnel with suspected or confirmed COVID-19 infection to return to work even if they have not met all the contingency strategies return-to-work criteria. Such personnel should be restricted from contact with patients who are immunocompromised, and duties with less risk of transmission should be prioritized.

Next Steps

In light of the seeming resurgence of COVID-19 during the winter months, providers should carefully review the CDC guidance to ensure a clear understanding about when their healthcare staff can work after an infection by or exposure to COVID-19. 

Providers are reminded that personnel may be entitled to NY COVID-19 Paid Sick Leave, if the individual is subject to a mandatory or precautionary order of isolation or quarantine issued by the state, the department, a local board of health or any government entity authorized to issue such order. Personnel who are placed under work restrictions after a high-risk exposure may be entitled to use their statutory paid sick leave.

Ira Wincott, Sanjay Nair and Joseph Gusmano are attorneys with Littler in Long Island, NY. © 2022. All rights reserved. Reprinted with permission.