As the number of individuals being tested and diagnosed with COVID-19 continues to increase, the likelihood that an employee will report a confirmed diagnosis also increases. Employers should take steps now to understand COVID-19 in order to respond appropriately to an employee’s diagnosis. Information about how COVID-19 is transmitted, the probability of transmissions and complications, and the duration of the risks is evolving. Employers should seek the most up-to-date information about the virus through sources such as the publications and guidance materials issued by Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA) and state and local health departments. For example, OSHA recently issued “Guidance on Preparing Workplaces for COVID-19” which divides employers into four risk categories and provides recommendations on engineering controls, administrative controls, and personal protective equipment to reduce employee risk of exposure to COVID-19.
Also, employers should recognize that supervisors are probably the most likely persons to receive reports of an employee’s COVID-19 diagnosis or potential infection. An informed and trained supervisory staff can greatly assist an employer’s response to COVID-19. Supervisors should be instructed to report any disclosed diagnosis or potential infection immediately to HR (or the employer’s designated contact) and reminded to maintain the confidentiality of any such report so as to avoid any potential violation of the Americans with Disabilities Act (ADA) or the Health Insurance Portability and Accountability Act (HIPAA).
Once a diagnosis is reported to an employer, the employer should take the following steps:
- HR (or the designated contact), acting on behalf of the employer, should contact the employee immediately and verify the diagnosis. The employer should advise the employee that his/her self-disclosure is appreciated, that he/she will not be discriminated or retaliated against because of the diagnosis and that, while information about the diagnosis may be shared with others, the employee will not be identified by name.
- The employer should instruct the employee to stay home for at least 14 days or any such longer period of time recommended by his/her health care provider or the applicable health department.
- The employer should take steps to identify the scope of the risk immediately. The employee should be interviewed to determine all co-workers with whom the employee may have come into meaningful contact during the 14-day period prior to the positive test (the “Incubation Period”). The employee should also be asked to identify all areas within the workplace where he/she was physically present during the Incubation Period.
- The employer should contact directly each co-worker identified by the employee and each co-worker who worked in any identified areas of the workplace and advise that a person with whom they have been in recent contact and/or with whom they recently shared a common work area has been diagnosed with COVID-19. Instruct them that, out of an abundance of caution, the employer is requesting that they remain out of the office for at least 14 days since the last point of contact (or such greater period of time that may be recommended by their health care provider) and to work remotely, if possible. The co-workers should be encouraged to self-isolate and seek all medical care and testing that they feel may be appropriate. The co-workers should also be reminded that discrimination or retaliation against individuals that are suspected to have tested positive for, or been exposed to, COVID-19 (or any other illness) is strictly prohibited.
- The employer must consider the wage and hour issues presented if the affected employee and any potentially affected co-workers are not able to work remotely and communicate the pay policies to employees. For more information, read our COVID-19 FAQ for Employers and our guide to Developing Workplace Policies to Combat COVID-19.
- Depending on the employer’s size and workplace logistics, the employer should also consider issuing a general notice to its workforce that an employee has tested positive for COVID-19 (without identifying the employee). Any such notice should reassure employees that, unless the employee has been notified directly by the employer, it is not believed that the employee has been in close contact with or shared a common workspace with the infected employee. Employees should be reassured that the employer is only providing the general notice to dispel any rumors and so that employees may continue to monitor themselves for symptoms and seek treatment if needed.
- Employers should shut down those areas of the workplace identified by the employee until those areas can be cleaned in accordance with CDC guidelines. See https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html
It can be even more difficult to navigate circumstances in which an employee either will not or is unable to self-disclose a COVID-19 diagnosis. For example, what is an employer’s obligations to its workforce to disclose that an employee is quarantined because he believes he has been infected but has not yet been tested? What is the employer’s obligation if the employee is awaiting test results? Current guidance is unclear, but we suggest that, under either circumstance, the employer should require the employee to remain home pending testing. Additional steps to be taken by the employer in these circumstances, such as notifying co-workers of an unconfirmed diagnosis, should be considered on a case-by-case basis, depending upon the nature of the workplace, the proximity within which the employee worked with others, and any factors that may increase the likelihood the employee is actually infected, such as multiple diagnoses in the geographical region, the employee’s recent travel or close contact with infected persons, etc. As a general rule, when in doubt, err on the side of caution and workplace safety and do not be afraid to seek expert guidance.
These decisions will not be easy, but employers should remind themselves of their obligation under the OSHA General Duty Clause (Section 5(a)(1)) to furnish each employee with a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm. Frequent communication to employees (both in the office and at home) will help alleviate that concern, enable the flow of truthful information, and reduce rumors.