In the midst of the global pandemic, nothing is certain … except endless Zoom calls, taxes and the fear of what to do if an employee tests positive for COVID-19. That last exception is likely on the minds of many business owners while numbers of COVID-19 cases continue to increase in Oregon and elsewhere. It is my hope that this seven-step guide will provide employers some stress reduction in the event of a worker testing positive.
1. Isolate/quarantine the infected employee
Instruct the infected employee to remain at home until released by a physician or public health official. If a doctor’s note releasing the employee is unavailable, follow the CDC guidelines on when an employee may discontinue self-isolation. The guidelines contain specific requirements dependent upon whether the employee tests positive for COVID-19 and/or exhibits symptoms.
2. Conduct contact tracing to identify individuals in “6-15-48” zone
After learning that one employee (or more) has been diagnosed with COVID-19, act quickly to have the person(s) identify all other employees and/or third parties who might have been exposed during the infectious period. Ask the infected employee to identify all individuals who fall in the “6-15-48” zone: those who worked with him or her in “close proximity” (within six feet) for a prolonged period of time (15 minutes or more) during the 48-hour period before the onset of symptoms.
3. Address employees who were in close proximity to the infected employee
As per CDC guidance, notify all noncritical infrastructure workers who were in close proximity to the infected employee that they may have been exposed and send them home for 14 days to ensure the infection does not spread. While these employees are quarantined, instruct them to self-monitor for symptoms, avoid contact with high-risk individuals, and seek medical attention if symptoms develop. As noted below, these employees may qualify for Families First Coronavirus Response Act leave.
The CDC has developed alternative guidelines for critical infrastructure workers. An essential business’ asymptomatic employees who have been directly exposed to a confirmed case of COVID-19 can continue to work if certain guidelines are met.
4. Recording, reporting and investigating the work-relatedness of COVID-19
OSHA recently unveiled new requirements for covered employers to make an increased effort to determine whether they need to record and report confirmed coronavirus cases in the workplace. To ensure compliance, document efforts to determine if the positive COVID-19 case was work-related. In most situations, after learning of an employee’s COVID-19 illness:
1, ask the infected employee how he or she believes the illness was contracted;
2, while respecting employee privacy, discuss with the infected employee his or her work and out-of-work activities that may have resulted in contraction of the illness; and
3, review the employee’s work environment for potential COVID-19 exposure.
Look to the surrounding evidence to aid these efforts. OSHA’s guidance highlights that certain types of evidence weigh in favor of or against work-relatedness. When there is no alternative explanation, a case is likely work-related. Examples include:
- when several cases develop among workers who work closely together;
- if it is contracted after lengthy, close exposure to a customer or co-worker who has a confirmed case of COVID-19; or
- if an employee’s job duties include having frequent, close exposure to the general public in a locality with widespread transmission.
If a reasonable and good faith inquiry is made 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, the agency says the illness does not need to be recorded. Since Oregon OSHA announced that it intends to develop separate emergency temporary standards to address the ongoing COVID-19 pandemic, also always check if there is new local and state guidance to determine if there are other investigation, reporting or recording obligations triggered by a positive COVID-19 case.
5. Clean and disinfect the workplace
In the wake of a confirmed COVID-19 case, 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) used by the ill person, with focus especially on frequently touched surfaces.
If using cleaners other than household ones with more frequency than an employee would use at home, ensure workers are trained on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication Standard. Simply download the manufacturer’s Safety Data Sheet (SDS) and share with employees as needed, and make sure the cleaners used are on the company’s list of workplace chemicals used as part of a Hazard Communication program.
6. Determine if other employees and third parties should be notified
Following confirmation of a COVID-19 case, and as recommended by the CDC, notify all employees (access sample forms at www.fisherphillips.com/data-bank-templates-forms) who work in the location or area where the employee works. Notification should be done without revealing any confidential medical information such as the name of the employee. An employer may obtain the employee’s signed authorization to disclose his or her diagnosis. Also notify any third parties who may have been exposed by the infected employee.
Inform employees and third parties of actions taken, including requiring employees who worked closely to the infected worker to go home (if a nonessential business), and sanitizing and cleaning. Include a reminder about seeking medical attention if they exhibit symptoms. The failure of an employer to notify employees at its location of a confirmed COVID-19 case may be a violation of OSHA’s general duty clause, which requires all employers to provide employees with a safe work environment.
7. Determine if the infected employee/others are eligible for paid time off
Finally, determine if the employee is eligible for paid time off under company policy, local, state or federal guidelines. If an employer is covered under the Families First Coronavirus Response Act (FFCRA), the infected employee may be eligible for emergency paid sick leave. Other potentially exposed employees may also be eligible for emergency paid sick leave or other leave as provided in a company handbook. Be sure to maintain appropriate documentation for employees on leave.
Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or firstname.lastname@example.org.