Wednesday, August 12, 2020

Employer Obligations When an Employee Tests Positive for COVID-19


Employer Obligations When an Employee Tests Positive for COVID-19

Although there is a lot of guidance available regarding an employer’s obligation when an employee tests positive for COVID-19 positive, the key steps to keep in mind are summarized below:

STEP #1: Send the Employee Home

The first thing an employer must do is to immediately send the sick employee home.  Even if a business is deemed an “essential business,” any employee who is sick needs to be send home right away.

An employee who is sick and who tests positive for COVID-19 should stay home for 10 days after the symptoms first appeared and for 24 hours after their recovery (i.e. once there is no fever without the use of fever reducing medicine and have experience improvement in symptoms – e.g. cough, shortness of breath, etc.). 

Employees who have been exposed to COVID-19 but have not shown any symptoms and have not been tested, should quarantine for 14 days, which is deemed the incubation period for the virus.

STEP #2: Identify “Close Contacts”

The second step employers need to take is to ask the sick employee to think about where he/she/they have been in the previous two weeks and identify any coworkers who he/she/they have had close contact with.  The term “close contact” is defined as having been within six feet of an infected person for 15 or more continuous minutes, even if all the parties were wearing masks at the time.  It is important to note that the infectious period includes at least the last 48 hours before the individual developed symptoms. 


Those determined to have been in “close contact” with an infected employee also need to be sent home and quarantine for the incubation period of 14 days.  If the quarantined employee develops COVID-19 symptoms during that time, then he/she/they will need to stay home for 10 days after their symptoms first appeared and for 24 hours after their recovery.


Due to confidentiality and privacy laws, when an employer is talking to employees or third parties (i.e. vendors) about their exposure, the employer should not reveal the name of the employee who has tested positive for COVID-19.  Employers may say something along the lines of “We think you may have been exposed to someone with COVID-19.  Therefore, you will have to quarantine.” 

Pay Obligations

Employers must pay for the day an employee is sent home (reporting time pay obligation). Nonexempt employees may use vacation or sick time, if available, to cover their wages during their quarantine or sick period. In some cases, workers may be able to obtain compensation through the Families First Coronavirus Response Act.

If an exempt employee is sent home to quarantine, then the employee should be advised not to work from home. Alternatively, if the employee can work from home and it can be agreed upon, then the employer needs to keep paying the exempt employee’s salary.

STEP #3: Investigate, Record and Report

OSHA recently released new recordkeeping obligations for covered employers.  To help ensure compliance, employers should document their efforts in determining whether a positive COVID-19 case was work-related.  This can be achieved by conducting an investigation once the employer has learned of an employee’s COVID-19 illness. 

For example, the employer should:

1-      Ask the infected employee how they believe they contracted COVID-19;

2-      Keeping privacy considerations in mind, speak with the infected employee and discuss their work and out-of-work activities that may have led to their illness;

3-      Review and analyze the employee’s work environment for potential COVID-19 exposure.

If an employer conducts a reasonable and good faith inquiry but is unable to determine whether it is more likely than not that exposure in the workplace played a role in the COVID-19 case, then the employer is likely not required to record the illness. 

Employers should regularly check local and state regulatory agency guidelines regarding any other investigation, reporting and recording obligations due to a positive COVID-19 case.  For example, should an employee test positive for COVID-19, the employer will need to contact their local health department.  In Los Angeles County, employers that have knowledge of 3 or more positive COVID-19 cases among their employees within a 14-day period must report it as an “outbreak” to the Department of Public Health.  In addition, if an employee is hospitalized for at least 24 hours, the employer will have to record the information on the Cal/OSHA Form 300, Log of Work-Related Injuries and Illnesses.

STEP #4: Disinfect and Clean the Workspace

Once an employer knows of a confirmed COVID-19 case, it should follow the Center for Disease Control (CDC) guidelines for cleaning and disinfecting the workplace.  If using cleaners other than household cleaners with greater frequency than an employee would use at home, then ensure employees are trained on the hazards of the cleaning chemicals used and maintain a written program in accordance with OSHA’s Hazard Communication standard. 

Final Note

Employers should regularly check with their local and state Department of Public Health, Cal/OSHA, and the CDC regarding any guidance issued on the foregoing topics to ensure they have the latest applicable information.

Should you need assistance navigating your obligations, please give me a call.