January 18, 2021

Volume XI, Number 18


January 15, 2021

Subscribe to Latest Legal News and Analysis

CDC Issues Guidelines for Reopening

The Centers for Disease Control and Prevention (CDC) recently issued guidance titled “CDC Activities and Initiatives Supporting the COVID-19 response and the President’s Plan for Opening America Up Again.” The 60-page document details the initiatives, activities, and tools the CDC is using to support the effort to reopen the country amid the ongoing COVID-19 emergency, as well as interim guidance for child care programs, schools and day camps, employers with high-risk workers, restaurants and bars, and mass transit administrators.

CDC Priorities and Initiatives


As part of its new guidance, the CDC has identified COVID-19 testing as essential to reopening the economy, and the guidance thus includes recommendations for prioritizing patients for testing, improving the reliability and efficacy of testing, and making testing and monitoring more widely available.

The CDC is also working with federal government partners to provide support to states to expand their testing programs. The CDC’s focus is on assisting states with developing state-specific testing plans that address the unique needs of each state, rather than implementing or mandating a blanket testing program. The CDC is also providing support by augmenting state public health laboratories with needed testing supplies, such as testing devices and reagents and working with the White House Coronavirus Task Force to ensure the available commercial market is able to support the proposed expanded state testing efforts. The CDC’s stated goal is to achieve a rate of less than 10% positive COVID-19 tests among symptomatic, asymptomatic, and pre-symptomatic individuals.

The CDC is also focused on improving testing for surveillance and outbreak control so it may identify and respond to virus clusters before they spread. This effort includes using existing, nationwide surveillance systems to identify potential outbreaks, including use of the CDC’s Influenza-Like Illness Network and the National Syndromic Surveillance Program as well as enhancing case investigation and contact tracing through increased public health staff and rapid testing capability.

The guidelines further call for increased testing of asymptomatic individuals, and clear indications for serologic testing, given the utility of serologic testing for understanding the transmission of the virus, and potential immunity in the population. Lastly, the CDC is focused on improving existing infrastructure and technology to improve data flow and case reporting. These efforts include aiding in the development and integration of solutions to expand state and community-wide sites to ensure citizens receive comprehensive, up-to-date information about the prevalence of the virus in each community.

Phased Reopening

Apart from its guidance aimed at expanding COVID-19 testing, the CDC has proposed a three-phased plan for reopening that outlines an approach for relaxing community mitigation measures while protecting vulnerable populations, such as the elderly and those with underlying health conditions. In conjunction with the three-phased approach, CDC guidelines propose the use of six “gating criteria” that should be assessed before progressing into the next phase of reopening. The approach can be implemented statewide or community-by-community at each state governor’s discretion.

These gating criteria include decreases in newly identified COVID-19 cases, decreases in emergency department and/or outpatient visits for COVID-19-like illness, and the existence of minimum infrastructure for a robust testing program. As an example, to enter Phase 1 of reopening, a community would assess the gating criteria of decreases in newly identified cases and would need to determine whether there is a downward trajectory (or near-zero incidence) of documented cases over a 14-day period. Consideration between phases should be given to such factors as existing public health capacity based on certain measurable criteria, such as contact tracing and incidence relative to local public health resources. The guidance acknowledges some communities may progress sequentially through the reopening phases while other jurisdictions may end up moving backwards at certain points, based on an ongoing assessment of the gating criteria against the threshold for entering each phase.

Additional Guidance

The guidance also includes a proposed operational plan for surveillance of COVID-19 cases, health care system capacity surveillance, and guidance on infection control, contact tracing, and test usage.

Setting Specific Guidance

The CDC has included updated guidance to assist specific types of businesses as they begin to reopen, with a “menu” of safety measures contained within three steps that businesses may use as a reference as they “scale up” their operations. Businesses are free to choose the measures applicable to their operations and local community, as well as applicable state and local requirements. Mitigation efforts will continue to be necessary even at the highest step until a vaccine or therapeutic drug becomes widely available. 

Employers with Workers at High-Risk

The guidance recommends that as workplaces begin to scale up activities towards pre-COVID-19 operating practices, they recognize some workers are at higher risk for severe illness from COVID-19. Such workers include individuals over age 65 and those with underlying medical conditions, such as chronic lung disease, hypertension, weakened immunity, or severe obesity. Workers at higher risk for severe illness should be encouraged to self-identify, and employers should avoid making unnecessary medical inquiries. Employers should consider carefully how to reduce workers’ risk of exposure to COVID-19 consistent with relevant Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA) regulations and EEOC guidance.

The recommended steps for scaling up are:

  • Step 1: Scale up only if business can ensure strict social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; workers at higher risk for severe illness are recommended to shelter in place.

  • Step 2: Scale up only if business can ensure moderate social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; workers at higher risk for severe illness are recommended to shelter in place.

  • Step 3: Scale up only if business can ensure limited social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers.

The CDC guidance further notes that employers should protect employees at higher risk for severe illness by considering accommodations, such as offering them options to work remotely and/or job duties that minimize contact with others.

Child Care Programs

The CDC guidance includes a gradual scale up of child care programs towards pre-COVID-19 operating practices, because such programs are crucial to helping parents and guardians return to work. Because all jurisdictions may not implement the same plan, the CDC guidance notes that all decisions about following the recommendations should be made locally, in collaboration with local health officials who can help determine levels of COVID-19 community transmission and the capacities of the local public health system and health care systems.

The recommend steps for scaling up are:

  • Step 1: Restrict to children of essential workers.

  • Step 2: Expand to all children with enhanced social distancing measures.

  • Step 3: Remain open for all children with social distancing measures.

Schools and Day Camps

As communities scale up to pre-COVID-19 operating practices in K-12 schools and summer day camps, the CDC provides recommendations for keeping communities safe while resuming peer-to-peer learning and providing support for parents and guardians returning to work.

The recommended steps for scaling up are:

  • Step 1: Schools that are currently closed should remain closed. Distance learning should be provided for all students. School meal programs and other support services should be offered, as feasible. Camps should be restricted to children of essential workers and for children who live in the local geographic area only.

  • Step 2: Remain open with enhanced social distancing measures. Restrict attendance to children of essential workers and children who live in the local geographic area only.

  • Step 3: Remain open with distancing measures. Restrict attendance to children of essential workers and children from limited transmission areas (other Step 3 areas) only.

Restaurants and Bars

The guidance provides recommendations for how food service industry businesses can maintain operations and a safe and healthy work environment for employees, while reducing the risk of COVID-19 spread for both employees and customers.

The recommended steps for scaling up are:

  • Step 1: Bars remain closed and restaurant service should remain limited to drive-through, curbside take out, or delivery with strict social distancing.

  • Step 2: Bars may open with limited capacity; restaurants may open dining rooms with limited seating capacity that allows for social distancing.

  • Step 3: Bars may open with increased standing room occupancy that allows for social distancing; restaurants may operate while maintaining social distancing.

Mass Transit Administrators

Mass transit is critical for many individuals to commute to and from work and to access essential goods and services. The guidance provides recommendations for how mass transit administrators can maintain healthy business operations and a safe and healthy work environment for employees, while reducing the risk of COVID-19 spread for both employees and passengers.

The recommended steps for scaling up are:

  • Step 1: Restrict ridership to essential critical infrastructure workers in areas needing significant mitigation, and maintain strict social distancing as much as possible.

  • Step 2: Maintain social distancing between transit riders and employees as much as possible.

  • Step 3: Encourage social distancing as much as possible. 

Finally, for all of these categories, the guidance also includes suggested safety actions, approaches for monitoring and preparing for cases, recommendations for promoting social distancing, staff training, and hygiene protocol, based on the specific setting The CDC indicates it will update the guidance as it learns more about COVID-19 and best practices to prevent its continued spread.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 144



About this Author

Naomi G. Beer Labor & Employment Litigation Attorney Greenberg Traurig Law Firm Denver

Naomi G. Beer is Co-Chair of the firm's Global Labor & Employment Practice and Co-Chair of the Labor & Employment Practice’s Collective & Systemic Employment Litigation group. She is an experienced litigator who focuses her practice on managing complex engagements. Naomi has over 25 years of experience advising clients on all aspects of complex, class action and multi-district litigation and has served as national counsel for clients faced with related proceedings in multiple jurisdictions and forums. Naomi also frequently counsels clients faced with complex...

James Boudreau, Greenberg Traurig Law Firm, Philadelphia, Labor and Employment Litigation Attorney

James N. Boudreau is a lawyer at the Global Labor & Employment Practice and the Labor & Employment Practice’s Collective & Systemic Employment Litigation group. He represents management in class action and complex employment litigation and devotes the majority of his practice to managing teams of attorneys and paralegals in nationwide class and collective actions from receipt of the complaint through discovery, class certification and trial. He is considered a thought leader in class-based employment litigation and has been listed by Human Resource...

Nancy Taylor, Greenberg Traurig Law Firm, Washington DC, Health Care Law Attorney

Nancy Taylor is Co-Chair of the Health Care & FDA Practice and has advised clients on health and FDA related matters for more than two decades. She has broad experience in areas relating to the Affordable Care Act provisions, CMS reimbursement and policy issues relating to providers and plans, and she has done a significant amount of FDA regulatory work. Prior to joining Greenberg Traurig, Nancy served 10 years as Health Policy Director for the Senate Committee on Labor and Human Resources and worked on a number of significant health and FDA laws, including NLEA,...

Tess Meyer Healthcare Lawyer Greenberg Traurig Law Firm

Tess Meyer advises payers, providers, biotech and pharmaceutical companies, large employers, and other health care stakeholders on health care regulatory compliance issues and policy objectives. She conducts complex regulatory and compliance assessments, including matters related to Affordable Care Act compliance, Medicaid and Medicare issues, and market conduct requirements.