An Employee Tests Positive for COVID-19:  Now What?

By September 4, 2020 Coronavirus, Labor and Employment

BY

As an employer, you mandate masks in public spaces, enforce one-way traffic to the bathroom and kitchen, and strategically spread hand sanitizer throughout the office.  Your safety protocol is carefully thought out and painstakingly implemented.  These are important steps to keeping the workplace safe during the pandemic, but do you know what to do if an employee tests positive for COVID-19?  Below is a six-step guide to keep calm and properly address a positive COVID-19 case in the workplace:

Step One: Send Home and Quarantine the Employee

If an employee exhibits COVID-19 symptoms while at work, he or she should be sent home immediately.  The employee should stay at home until he or she receives test results.  If the employee tests positive, he or she must remain at home until released by a medical doctor, physician or public health official.  Keep in mind that an employee may be eligible for up to 80 hours of paid leave under the Families First Coronavirus Response Act.

Step Two: Conduct Contact Tracing

Once learning that an employee has tested positive for COVID-19, an employer must work with the infected employee to identify all other employees, clients, customers, and/or vendors who have been in “close contact” with the employee during the infectious period.  A “close contact” is an individual who has been within six feet of the infected employee for fifteen minutes or more during the 48-hour period before the employee’s symptoms began.

In many states, the CDC will also collect this information.  If the CDC contacts you, it is important to cooperate with the agency’s request for information.

Step Three: Notify the Infected Employee’s Close Contacts and Determine if Other Employees Should be Notified

You should promptly notify all non-critical infrastructure workers who constitute “close contacts” of the possible exposure to COVID-19 and require that they quarantine for 14 days to prevent further infection. During the quarantine period, employees should self-monitor for symptoms and seek medical attention if symptoms develop.  These employees may also be eligible for up to 80 hours of paid leave under the Families First Coronavirus Response Act.

The CDC has developed alternative guidelines for critical infrastructure employees.  In some instances, asymptomatic essential employees can continue to work if certain guidelines are met.

In the interest of transparency, it often makes sense to notify all employees (not just close contacts) that an employee tested positive for COVID-19.  You do not need to require that these employees quarantine.  However, the employees should be encouraged to self-monitor and stay home if they experience any symptoms.

While notification is key, so is discretion.  Employers cannot disclose an employee’s identity when making notifications.  The notification should state that an employee tested positive on a specific date but not include any personally identifiable information.

Step Four: Record and Report

Notification of a COVID-19 positive employee falls under OSHA’s general duty requirement to provide a safe workplace.  OSHA published new recordkeeping requirements that obligate covered employers to make efforts to properly record and report confirmed COVID-19 cases.  To meet these requirements, you should investigate (and then document) efforts undertaken to determine if the positive COVID-19 case was work-related.  Typically, this will involve the following steps:

  1. Ask the infected employee whether he or she knows how he or she contracted COVID-19;
  2. Ask the infected employee to provide a list of all other employees or other third parties that he or she has been in contact with at the workplace and outside of the workplace; and
  3. Review the employee’s work schedule and points of contact for potential COVID-19 exposure.

If you make a thorough and good faith effort 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, OSHA provides that you do not need to record the illness.

However, there may be state and local reporting obligations.

Step Five: Sanitize the Workplace and Assess Whether a Shutdown is Appropriate

After a confirmed COVID-19 case, you must 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) with a particular focus on all areas touched by the infected employee person in the days prior to the diagnosis.

If you determine that the risk of spreading the infection is significant or there are multiple employees who test positive for COVID-19, consider closing the workplace for up to 14 days (or until the risk is mitigated).

Also, the employees responsible for cleaning are at risk of exposure and should be supplied with appropriate personal protective equipment, including gloves and face masks.

Step Six:  Determine When the Infected Employee Can Return to Work

A negative COVID-19 test before employees return to work is not required by the CDC.  The CDC guidance suggest the follow return to work guidelines:

  • Asymptomatic employees can end isolation and return to work 10 days after testing positive.
  • Employees with mild to moderate symptoms can end isolation after 10 days, provided that at least 24 hours have passed without a fever (and without use of fever-reducing medication) and other symptoms have improved.
  • Employees with severe symptoms may need to continue isolation for a full 20 days or longer.

In some states, the CDC will issue a return to work letter for employees.

Conclusion

Despite your best efforts to sanitize and mitigate risk in the workplace, it is likely that an employee will test positive for COVID-19.  If (or when) this happens, proper remediation is the key to stopping the spread of COVID-19 in your workplace.  As with everything COVID-19 related, this is an evolving area of employment law.  Perkins Thompson will continue to monitor the rapidly developing COVID-19 guidance and provide updates as appropriate.

Perkins Thompson regularly assists employers develop and implement COVID-19 return to work, remote work, and risk mitigation protocols.  If you would like to speak with the firm about these issues, you can send an e-mail to Dawn Harmon or call her directly at 207-774-2635.