The New York Department of Health (“Department”) has circulated a revised Advisory on return-to-work protocols for healthcare personnel after infection or exposure to COVID-19. Once published, the new protocols, dated November 30, 2022, will supersede the Department’s earlier protocols, dated February 4, 2022, and align New York with the current recommendations issued by the Centers for Disease Control and Prevention (CDC).¹

The Department’s Updated Advisory on Return-to-Work Protocols for Healthcare Personnel with SARS-CoV-2 Infection or Exposure to SARS-CoV-2, 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 (as defined by the CDC) to mitigate healthcare personnel staffing shortages. Regardless of a facility’s current strategy, 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 based on criteria discussed later in this article.

Healthcare Personnel

For purposes of the updated return-to-work protocols, both the Department and the CDC define healthcare personnel as “all paid and unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients or infectious materials.” They include, but are not limited to, “emergency medical service personnel, nurses, nursing assistants, home healthcare personnel, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the healthcare facility, and persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the healthcare setting.”

Return to Work After Infection by or Exposure to COVID-19 for Healthcare Settings in Conventional Strategy Status 

After Infection

Healthcare personnel with mild to moderate illness who are not moderately to severely immunocompromised (as defined in the CDC guidance) can return to work after the following criteria have been met:

• At least 7 days have passed since symptoms first appeared if a negative viral test² is obtained within 48 hours prior to returning to work (or 10 days if testing is not performed or if a positive test at day 5-7); and
• At least 24 hours have passed since last fever without the use of fever-reducing medications; and
• Symptoms (e.g., cough, shortness of breath) have improved.

Healthcare personnel who were asymptomatic throughout their infection and are not moderately to severely immunocompromised can return to work after the following criteria have been met:

• At least 7 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 a positive test at day 5-7).

Healthcare personnel with severe to critical illness (as defined in the CDC guidance) who are not moderately to severely immunocompromised can return to work after the following criteria have been met:

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

The test-based strategy set forth in the CDC guidance³ for moderately to severely 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 the following criteria have been met:

• Use the test-based strategy and 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 to Individuals with a Confirmed COVID-19 Infection

Per CDC guidance, 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 personnel have 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; and:

• the healthcare personnel was not wearing a respirator (or if wearing a facemask, the person with SARS-CoV-2 infection was not wearing a cloth mask or facemask);
• the healthcare personnel was not wearing eye protection if the person with SARS-CoV-2 infection was not wearing a cloth mask or facemask; and
• the healthcare personnel was not wearing all recommended PPE (i.e., gown, gloves, eye protection, respirator) while present in the room for an aerosol-generating procedure.

Nonetheless, work restrictions may be considered in the above situation if the healthcare personnel:

• is unable to be tested (the CDC guidance recommends a series of three viral COVID-19 tests typically at day 1 [where day of exposure is day 0], day 3, and day 5) or wear source control⁴ as recommended for the 10 days following their exposure;
• is moderately to severely immunocompromised;
• cares for or works on a unit with patients who are moderately to severely immunocompromised; or
• works on a unit experiencing ongoing SARS-CoV-2 transmission that is not controlled with initial interventions.

A case-by-case analysis should be considered by any healthcare provider seeking to immediately return to work healthcare personnel who have had a “higher-risk exposure,” including an evaluation of the exposure and any mitigating factors that may result in the exposure not being considered “higher risk” at all (e.g., quality of ventilation, use of PPE and source control).

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 7 following the exposure (day 0) if they do not develop symptoms and all viral testing exposure is negative; or
• if viral testing is not performed, after day 10 following the exposure (day 0) 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 re-evaluation 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 again meet the above criteria to return to work.

Return to Work After Infection for Healthcare Settings in Contingency Strategy Status  

Contingency strategies (as defined by the CDC) should be observed when the facility anticipates staffing shortages. In certain limited circumstances, facilities observing contingency strategies may allow healthcare personnel to return to work despite not meeting the general criteria listed above, as follows:

Healthcare personnel who were asymptomatic throughout their infection and are not moderately to severely immunocompromised may return to work if at least 5 days have passed since the date of their first positive viral test (day 0).

Healthcare personnel with mild to moderate illness who are not moderately to severely immunocompromised may return to work if: (1) at least five days have passed since symptoms first appeared (day 0); (2) at least 24 hours have passed since the last fever without the use of fever-reducing medications; and (3) symptoms have improved.

Healthcare personnel permitted to return to work under these limited exceptions should (1) wear a well-fitting facemask at all times, (2) separate themselves from others when a need to remove the facemask exists, and (3) practice physical distancing to the extend practicable.

Return to Work After Infection for Healthcare Settings in Crisis Strategy Status

Crisis strategies (as defined by the CDC) 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 (1) notify the Department of the need to move to crisis strategies, (2) implement strategies to mitigate staffing shortages, and (3) ensure that the criteria for identifying higher-risk healthcare personnel exposures are applied properly.

As a last resort, facilities may consider allowing healthcare 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 healthcare personnel should be restricted from contact with patients who are moderately to severely immunocompromised and duties with less risk of transmission should be prioritized.

Recommendation for Healthcare Providers

In light of the seeming resurgence of COVID-19 during the winter months, providers should carefully review the Department-adopted 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 who may be required to isolate due to a COVID-19 infection 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 of New York, the Department, a local board of health, or any government entity duly authorized to issue such order due to COVID-19. Additionally, personnel who may be placed under work restrictions dicated by the circumstances of a “higher-risk exposure” may still be entitled to use their statutory paid sick leave. All healthcare providers are encouraged to contact legal counsel for further guidance as COVID-19 protocols and guidance are seemingly everchanging.