What Should An Employer Do When An Employee Tests Positive For COVID-19

COVID-19 cases are continuing to rise in the United States and, as a result, more employers are dealing with employees testing positive for the coronavirus. Since we first began providing information about responding to COVID-19 cases, updated guidance has provided some additional considerations employers should keep in mind as they address a positive coronavirus case. Here are seven steps you should take to address positive COVID-19 cases in the workplace:

1) Isolate/Quarantine Infected Employee
You should instruct the infected employee to remain at home until released by a physician or public health official. If a doctor’s note releasing the employee is unavailable, follow the Center for Disease Control (CDC) guidelines on when an employee may discontinue self-isolation, which contain specific requirements dependent upon whether the employee tested positive for COVID-19 and/or exhibited symptoms. The CDC recently has changed its guidance based on a better understanding of the virus. Specifically, the CDC reports findings that people with mild to moderate COVID-19 remain infectious no longer than 10 days after their symptoms began, and those with more severe illness or those who are severely immunocompromised remain infectious no longer than 20 days after their symptoms began.

The CDC has always recommended a symptom-based strategy, which tracks when a person becomes sick and recovers, to determine if they could cease isolating and return to work, in addition to negative testing. That strategy required people to achieve various milestones: (1) 72 hours passing since experiencing fever without the aid of fever-reducing medication; (2) respiratory symptoms improving; and (3) 10 days passing since symptoms began. The CDC has updated its symptom-based strategy to conform to new information about the virus. The CDC has changed the symptom-based criteria from “at least 72 hours” to “at least 24 hours” having passed since last fever without the use of fever-reducing medications; and “improvement in respiratory symptoms” to “improvement in symptoms” to address expanding list of symptoms associated with COVID-19. Generally, these changes should make isolation, quarantine, and time away from work shorter for most people. You can check www.cdc.gov for continuing updates.

2) Conduct Contact Tracing
After learning that one or more employees has been diagnosed with COVID-19, act quickly to have the infected employee identify all other employees and/or third parties who might have been exposed during the infectious period. Ask the infected employee to identify all individuals who worked in “close proximity” (within six feet) for a prolonged period of time (+15 minutes) with the infected employee during the 48-hour period before the onset of symptoms. There are many new apps and programs that can be used to help with the tracing efforts, including a tracking app for the IPhone. Consider using these to help with contact tracing.

3) Address Those Employees Who Were In Close Proximity To Infected Employee
Under CDC guidance, you should notify all workers who worked in close proximity to the infected employee that they may have been exposed. If the employee is a non-critical employee, you should send them home for 14 days to ensure the infection does not spread. While quarantined, you should instruct employees to self-monitor for symptoms, avoid contact with high-risk individuals, and seek medical attention if symptoms develop. The CDC has developed alternative guidelines for critical infrastructure workers. If you are an essential business, asymptomatic employees who have been directly exposed to a confirmed case of COVID-19 can continue to work if certain guidelines are met.

4) Recording, Reporting, and Investigating The Work-Relatedness Of COVID-19
OSHA recently unveiled new record-keeping requirements requiring covered employers to make an increased effort to determine whether they need to record and report confirmed coronavirus cases in the workplace. To ensure compliance, you should document your efforts to determine if the positive COVID-19 case was work-related. This involves asking the infected employee how they believe they contracted the COVID-19 illness, discussing with the infected employee their work and out-of-work activities that may have led to the COVID-19 illness and reviewing the employee’s work environment for potential COVID-19 exposure. OSHA’s guidance highlights that certain types of evidence weigh in favor of determining the illness is work-related such as when several cases develop among workers who work closely together. If you make a reasonable and good faith inquiry but cannot determine whether it is more likely than not that exposure in the workplace played a role in the confirmed case of COVID-19, the agency says that you do not need to record the illness.

5) Clean and Disinfect Your Workplace
After a confirmed COVID-19 case, follow the CDC guidelines for cleaning and disinfecting the workplace. The cleaning staff or a third-party sanitation contractor should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the ill person, focusing especially on frequently touched surfaces. If using cleaners stronger than household cleaners, train employees on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication standard. Simply download the manufacturer’s Safety Data Sheet (SDS) and share with employees as needed, and make sure the cleaners used are on your list of workplace chemicals used as part of a Hazard Communication Program.

6) Determine If Other Employees and Third Parties Should Be Notified
Following a confirmed COVID-19 case you should notify all employees who work in the location or area where the employee worked of the situation. Notification should be done without revealing any confidential medical information such as the name of the employee. You may obtain the employee’s signed authorization to disclose their diagnosis. Also notify any third parties that may have been exposed by the infected employee.

Inform employees and third parties of the actions you have taken, including requiring employees who worked closely to the infected worker to go home (if a non-essential business) and your sanitizing and cleaning efforts. Include a reminder about seeking medical attention if they exhibit symptoms. The failure to notify employees at your location of a confirmed case may be a violation of OSHA’s general duty clause, which requires all employers to provide employees with a safe work environment.

7) Determine If The Infected Employee Is Eligible For Paid Time Off
Finally, determine if the sick employee is eligible for paid time off under company policy, local, state, or federal guidelines. If you are a covered employer under the Families First Coronavirus Response Act (FFCRA), the infected employee may be eligible for 2 weeks of emergency paid sick leave. Check to see if the employee has sick or other type of leave available under company policy. If your business offers disability insurance, see if the employee may qualify for pay under the policy. Make sure you maintain appropriate documentation for employees on leave.

The rules and government guidelines regarding the COVID-19 situation are rapidly changing and developing. Schwartz Rollins LLC is monitoring these changes and will continue to provide updates as we deem appropriate. This information is not intended to be, and should not be construed as, legal advice for any particular fact situation. Feel free to contact us with specific questions. To find out more information about the products and services we provide, please visit our website or contact one of our attorneys (Jay Rollins, Debra Schwartz or Charlotte Redo, or our paralegal, Vicki Perry) at 404.844.4130.