The following article is published with permission from Theresa Sidebotham of Telios Law PLLC. Telios Law PLLC serves businesses, individuals, ministries, and churches, representing them in a wide variety of litigation, appeals, and atlernatives to litigation, as well as giving legal advice on a variety of issues. The original article can be found on Telios Law’s website.
A significant number of employees have been working from home, but they may soon return to work as stay-at-home orders are lifted across the country. As employees begin to return to their workplaces, employers want to know what they should do if an employee tests positive for COVID-19 or has symptoms of COVID-19. Are employers legally required to do anything? What is best practice in responding to a confirmed case of COVID-19 at the workplace? What if the person only has symptoms but no confirmation? What information can employers disclose to other employees, if any? This article will address five things employers should do when responding to a possible or confirmed case of COVID-19 in the workplace.
1. Review Relevant Organization Policy
Employers should first review relevant company policies like an infectious disease policy or a pandemic response plan. If the organization does not have a policy like these in place, now would be a good time to develop one, so your organization has an intentional, well thought out plan in place if needed. In this previous post, we discuss relevant policies your organization may wish to create or update. We also discuss workplace safety measures that should be taken during the pandemic to keep the workplace a safe and clean environment for employees.
2. Collect Information
Once an employee, working at the office, has symptoms of COVID-19 or tests positive for COVID-19, the employer will need to act quickly to minimize the spread of the disease in the workplace. If someone has symptoms of COVID-19, they may first be sent home. The employer must collect information from the infected employee as to the nature of the symptoms and whether the person will be tested. While the employer can reasonably require a symptomatic employee to submit to a medical exam during a pandemic, options for being examined and testing may still not be available to that employee. If testing is not available, it is wisest to assume that a symptomatic employee may have COVID-19.The infected employee should identify all areas of the office where he or she was physically present in the previous two weeks. The infected employee will also need to identify all people he or she came in contact within two weeks prior to testing positive or having symptoms. The employer can require the employee to stay home for 14 days, contact a health care provider, and self-quarantine.
3. Provide Notification
After collecting information from the infected employee, the employer should responsibly provide notification to impacted employees. The Center for Disease Control (CDC) recommends that if an employee tests positive for COVID-19, employers should inform other employees of their possible exposure to COVID-19 in the workplace. If your organization has a maintenance crew that comes in and cleans the office, they should also be notified. If you cannot get testing, it is reasonable to follow similar steps.
Under the Americans with Disabilities Act and other medical privacy laws, employers are prohibited from disclosing the private medical information of employees. The employer must maintain the medical confidentiality of the affected employee and cannot disclose the identity of the affected employee. Employers should alert potentially affected employees that an unidentified employee with whom they have been in recent contact has tested positive for COVID-19. Note however that if the affected employee freely gives permission, his or her identity can be revealed (but the employer must be able to show that there was no coercion). In small companies, it may be obvious anyway once others are notified.
If at all possible, impacted employees should be permitted to work remotely under self-quarantine at home for two weeks. Employers should encourage impacted employees to monitor themselves for symptoms and seek medical treatment if necessary.
If the infected employee was in physical contact with clients, vendors, or another third party while working, the employer should notify all impacted parties. This is more critical in cases where testing has confirmed COVID-19.
Additionally, employers may also be required to report confirmed cases of COVID-19 to the Occupational and Safety Health Administration (OSHA). OSHA has issued guidance requiring employers to report COVID-19 cases if 1) the case is confirmed as COVID-19 as defined by the CDC, 2) it’s work-related, and 3) it resulted in a bad outcome for the employee like death, time away from work, or medical treatment. The guidance issued provides that a case is “work-related” if a number of cases developed among workers who worked closely together and the evidence was available to the employer.
Finally, employers may also need to provide notification to the local health department. The organization should consult with local health department officials to determine whether the organization has a mandatory reporting obligation. If a local health department requires notification of any COVID-19 cases, employers do not have to maintain the confidentiality of the employee’s identity when reporting to the health department.
4. Sanitize the Workplace
Once an employer informs the workforce of the reported case of COVID-19, the organization should consider closing its offices for a period of time while the space is cleaned and sanitized. (Hopefully, the employer has been regularly maintaining sanitizing practices even before this.)
5. Maintain Communication
It is the employer’s duty to protect the workforce and maintain calm. Throughout the process, it is important for the employer to maintain consistent, honest, and thoughtful communication. While respecting medical privacy, employers should keep the impacted workforce informed about when they can return to the office, what measures have been taken to sanitize the office, and how the employer will be maintaining a safe and clean environment for the employees.
As restrictions are lifted, and employees begin going back to work in the office, employers must be prepared to respond to symptomatic or confirmed cases of COVID-19 in the workplace. As always, if you have specific questions related to your organization on this topic, be sure to reach out to experienced legal counsel.