April 16, 2020
Steven T. Clark
Member, Stoll Keenon Ogden LLC
What steps should an employer take if informed one of its employees has tested positive for COVID-19? If you have not been confronted with this situation already, it is likely you will be in the coming weeks. As Coronavirus testing becomes more accessible, it is inevitable that more employers will learn that one of their employees has tested positive for COVID-19.
An employer who learns that one of its employees has tested positive for COVID-19 must be sure to protect the privacy of the infected employee while also taking steps to protect the health of its other employees. Following are recommendations for approaching this situation.
What precautions should I take with the infected employee?
To the extent she is not already working from home, the infected employee should be sent home immediately. The Center for Disease Control (CDC)’s Environmental Cleaning and Disinfection Recommendations advise that areas in which the infected employee regularly worked within the previous fourteen days should be closed off to other employees and professionally cleaned and sanitized.
The employer should ask the infected employee to identify coworkers and customers who were within close proximity to them during the previous fourteen days. The employer should contact the coworkers and customers identified by the employee and advise them that an employee has tested positive for COVID-19. The Americans with Disability Act (ADA)’s privacy rules restrict employers from sharing the personal health information of an employee. To protect his or her confidentiality, the infected employee should NOT be identified by name. Nor should other identifying information (e.g., department, position) be provided. Employers should also consider notifying the entire office an employee has tested positive for COVID-19 and directing any questions or concerns to the human resources department. For additional information on the best practices for notifying customers of potential exposure to COVID-19, please visit SKO’s recent blog post on this topic.
The CDC has drafted a detailed Interim Guidance for Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings (Interim Guidance) explaining when an infected employee may return to work. The answer to this question varies depending on whether the employee with COVID-19 has exhibited symptoms or is asymptomatic. If the employee has exhibited symptoms, he or she should not return to work until:
• At least three days have passed since the resolution of fever without fever-reducing drugs;
• Improvement in respiratory symptoms (e.g., cough, shortness of breath); and
• At least seven days have passed since symptoms have first appeared.
Alternatively, formerly symptomatic employees who are able to produce a negative result on a subsequent COVID-19 test, may return to work if they achieved resolution of fever without drugs and improvement in respiratory symptoms.
If the employee is asymptomatic, she may return to work when at least seven days have passed since the date she first tested positive. For an additional three days, the employee should continue to practice social distancing and wear a cloth mask over her face and nose.
The CDC’s Interim Guidance discourages requiring a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their return to work, in order to reduce the burden on busy healthcare providers. Further, some state and local agencies have issued limitations on an employer’s ability to require a return-to-work certification.
Notwithstanding the CDC’s Interim Guidance, the Equal Employment Opportunity Commission (EEOC) has issued a press release expressly stating that employers may require employees returning to work to provide a doctor’s note stating they are fit for duty. Employers who decide not to require a doctor’s note may simply ask employees if they are experiencing COVID-19 symptoms, provided the response is maintained as a confidential medical record. Additionally, employers may measure an employee’s body temperature upon their return to work.
Whatever approach the employer adopts, the employer should be sure not to require more medical information than is necessary to determine whether the employee’s COVID-19 status presents a direct threat to the employer’s other employees. Requiring submission of medical information unrelated to the COVID-19 threat could violate the ADA’s privacy rules. Moreover, employers must be sure to enforce their return-to-work policies consistently to avoid disparate treatment of employees with similar symptoms.
What precautions should I take with the infected employee’s coworkers?
Those employees who were identified by the infected employee as having worked in close proximity to the infected employee should be sent home to prevent further spread of the virus. The CDC’s Public Health Recommendations for Community-Related Exposure guidance advises that these employees should self-monitor for symptoms. According to the CDC, employees exposed to the infected employee should not return to work until at least 14 days after their last exposure to the infected employee. If the exposed employee subsequently develops COVID-19 symptoms, she should follow the guidelines of the CDC’s Interim Guidance before returning to work.
In determining its criteria for an exposed employee’s return to work, the employer may employ any or all of the options available to it in handling infected employees. The employer may require a doctor’s note (although this is discouraged by the CDC), ask if the employee is experiencing symptoms, or test the employee’s temperature. Again, the most important consideration for the employer is to ensure its policies are enforced consistently.
Notably, the CDC has issued relaxed guidelines for asymptomatic critical infrastructure employees who have potentially been exposed to COVID-19 to remain at work. Employers who employ critical infrastructure employees, including, but not limited to, agriculture, critical manufacturing, information technology, and transportation employees, should consult the CDC’s critical infrastructure employee guidance if they believe it is necessary for an exposed employee to remain physically present at work.
Which types of leave are employees entitled to who are sent home due to COVID-19 infection/exposure?
Subject to a few exceptions, most provisions of the Families First Coronavirus Response Act (FFCRA) apply to employers who employ less than 500 employees. Among other provisions, the FFCRA legislation includes the Emergency Paid Sick Leave Act (EPSLA). Under the EPSLA, employees who have tested positive for COVID-19 and are unable to work or telework will be entitled to 80 hours of paid sick leave in addition to paid sick leave already offered by the employer. Employees who have been sent home due to exposure to COVID-19, but who have not been tested, may or may not qualify for paid sick leave under the EPSLA depending on the circumstances. However, even if the employee who has been sent home is not eligible for paid leave under the EPSLA, employers may consider offering such payment to ensure equal treatment of employees.
It is unlikely that an asymptomatic or mild case of COVID-19 will constitute a serious health condition under the Family and Medical Leave Act (FMLA). However, severe cases and those causing complications to employees with underlying conditions may entitle the employee to the typical twelve weeks of unpaid FMLA leave. Given the uncertainties surrounding COVID-19, employers should err on the side of caution in providing FMLA leave to COVID-19 related absences.
Asymptomatic employees or those suffering only mild symptoms will likely not qualify as disabled under the ADA. However, employees who suffer severe reactions to COVID-19 or who have underlying conditions exacerbated by COVID-19 may be entitled to leave or reasonable accommodation under the ADA. The ADA requires employers to evaluate employees on an individual basis.
Remember to express sympathy
The recipient of the news that an employee has tested positive for COVID-19 should express sympathy for the infected employee. The employee is most likely concerned for the health of her family and coworkers and her job status going forward. Employers should not make promises to the employee that it cannot keep. But, an employer may assure the employee that it will, to the greatest extent feasible, protect the confidentiality of the employee’s positive test.
Stoll Keenon Ogden understands that these are trying times for our clients and our country. Our firm operations have continued uninterrupted and our attorneys are equipped to serve as we always have – for over 120 years.
Members of our Labor, Employment & Employee Benefits practice can be your trusted advisors and effective advocates, helping your company navigate employment law issues, the effects of the COVID-19 pandemic on your operations and other issues related to COVID-19.
Please also be sure to consult the Stoll Keenon Ogden Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state, and local governments in response to the Coronavirus pandemic.