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.
Quarantine
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.
Privacy
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.
