March 17, 2020

An employee has tested positive for COVID-19: Now what?

Client Alert
John J. Park

At this moment in time, it may not be a question of “if” an employee will test positive for COVID-19, but “when.”  This document provides practical guidance on what notice employers should provide to employees in the event that a coworker tests positive for coronavirus.

Before we begin, it is of central importance for employers to encourage their employees to stay home if they are experiencing any COVID-19 symptoms, such as fever, cough, and shortness of breath.  You should explain that staying home prevents the spread of the virus.  Also, use this time to remind employees of any applicable leave policies and remote work policies. 

Can I tell employees who are experiencing COVID-19 symptoms to stay home? 

Yes.  Pursuant to the EEOC’s Guidance on Questions & Medical Exams and Pandemic Guidance, as well as the CDC, employers can send employees home if they are experiencing COVID-19 symptoms and explain that they cannot return to work unless symptom-free for a 24-hour period.  Advise employees to stay in touch with their supervisors. 

What should I do if an employee tests positive for COVID-19?  How and what should I communicate to other employees?

1. Ask the infected employee to identify all coworkers and areas within the office that they may have come in contact with at least 14 days prior to when they tested positive. This will ensure that the employer knows what areas within the building should be professionally cleaned and sanitized, as well as inform the employer of all employees who should be encouraged to get tested and/or self-quarantine.

2. Contact the employees identified by the infected employee.  Do NOT tell them the name of the infected employee or provide any clues as to who the infected employee could be (for example their department, job title, work location, etc.).  Advise them that an employee that has been physically present in the office has tested positive for COVID-19, and out of an abundance of caution, the employer is requesting that they do not present to the office for at least fourteen days.  You may also want to encourage them to self-quarantine and to work remotely if possible.  Without delving into their medical history, encourage the employees to also reach out to their health care provider.  Please see our article on wage and hour implications for employers who have to temporarily close their office or employees who must self-quarantine.

3. Inform your other employees.  Again, without identifying the name of the infected employee, tell your employees that an employee has tested positive for COVID-19 and that the office will be closed until further notice for deep cleaning and sanitizing. 

4. Encourage everyone to contact Human Resources with questions or concerns. 

5. Consider whether to shut the office down for fourteen days and allow employees to work from home.  For some employers, especially in the healthcare industry, this may not be an option. 

6. Remind employees that discrimination or harassment against individuals that are suspected to have tested positive for, or been exposed to, coronavirus, is strictly prohibited. 

7. In the midst of the uncertainty, be honest and transparent (to the extent allowed by law), and remain calm and patient with your employees.  Let them know that you are taking steps to protect their health and safety.

On March 18, 2020, the EEOC updated its Pandemic Preparedness In the Workplace and the Americans with Disabilities Act publication to help employers avoid violating the ADA. The EEOC recently updated the publication on March 21, 2020. In short, the EEOC noted that some rules and procedures that might otherwise raise ADA concerns may be permissible under the circumstances:

  • Employers may ask employees if they are experiencing symptoms of COVID-19 (fever, chills, cough, shortness of breath, or sore throat), but should be careful to ensure that questions are tailored to determining whether the employee may be ill with COVID-19 and do not relate to other health conditions. Any information obtained by employees should be treated as confidential and maintained in the employee’s separate medical files.
  • Employers may measure employees’ body temperature.
  • Employers may require employees with symptoms of COVID-19 to leave the workplace.
  • Employers may inform fellow employees of their possible exposure to COVID-19, but should not identify the affected employee or provide any identifying information (such as department, job title, or work location).
  • Given the overwhelming demands on healthcare providers, employers may consider accepting less formal acknowledgment confirming that the employee does not have COVID-19.
  • Employers may require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work.

Please read our article “EEOC Issues ADA Guidance on Coronavirus” for more information.

Also, please refer to the following articles for further information on how you can better prepare your business to tackle issues related to the COVID-19 pandemic.

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