A frequent question for businesses that open during the pandemic is what do we do if we have an employee who reports that they have tested positive for COVID-19? Cal-OSHA, recently issued guidance for employers on the specific topic of handling outbreaks in the workplace. That guidance can be found on Cal-OSHA’s website. Cal-OSHA advises that even a single positive case may quickly turn into an outbreak among employees. Due to the large variety of workplaces, Cal-OSHA recommends that employers contact and consult with their local health department to plan and coordinate their response.
Employers must still comply with Cal-OSHA reporting requirements and immediately report serious injuries, illnesses, or deaths in the workplace. According to Cal-OSHA this means employers should report all COVID-19 related inpatient hospitalizations and deaths even if it is uncertain that they are work-related.
Governor Newsom’s May 6, 2020 Executive Order provides, for workers’ compensation coverage purposes, that any case of COVID-19 contracted between March 19, 2020 and July 5, 2020 by an employee who works outside the home, is presumed to have occurred in the course of employment. This presumption is rebuttable (e.g. the employee lives with a non-employee who had COVID-19), but the employer does not get to decide whether or not the virus was contracted at work. The employer should give the employee a worker’s compensation form and let the insurance carrier determine coverage.
Employers should also consider:
- Informing coworkers who may have come into contact with the infected employee that an employee (maintain confidentiality of the employee’s identity to the extent practicable) has tested positive.
- Providing COVID-19 testing for other employees. If testing is required by the employer, the expense must be paid for by the employer, and the employees must be paid for the time they spend undergoing testing. Employees cannot be required to undergo COVID-19 antibody testing, – only testing for active infection.
Where testing is not possible, employers should consider contact tracing to identify those who have had close contact with the infected employee, and advise those close contacts to quarantine at home for 14 days from their last known contact with the infected employee. If numerous employees were in close contact with an infected employee, employers should strongly consider closing the worksite temporarily and advising all employees to quarantine. “Close contact” means spending 15 minutes or more within 6 feet of a COVID-19 positive employee during their infectious period, which includes 48 hours before they became symptomatic.
While at home, quarantined employees should monitor for any potential symptoms of COVID-19 (fever, shortness of breath, cough, loss of taste/smell, congestion/runny nose, sore throat, fatigue, chills, nausea/vomiting, diarrhea) and should be encouraged to get a COVID-19 test if they develop symptoms.
The work area used by the infected employee(s) must be cleaned and disinfected (and such cleaning and disinfecting of the workplace should be done regularly). - Employees who are still reporting to work should not share equipment (particularly equipment that comes into contact with the face or mouth, such as telephones and headsets), and employees must be reminded to follow safety protocols established by the CDF and local guidance (including wearing face coverings and social distancing. Employees should frequently be reminded not to report to work with symptoms.
- Employers must also follow current guidance on when it is safe to allow an employee who has tested positive for COVID-19 to return to work. The answer varies depending on whether the employee has symptoms or is asymptomatic. The answer also varies depending on whether COVID-19 testing is available and utilized. According to the CDC guidance, if an employee tests positive and has symptoms, the employee may return to the workplace either: (1) 72 hours after the employee is fever-free (without the use of fever-reducing medicine), AND respiratory symptoms (cough, shortness of breath) have improved, AND at least 10 days have passed since symptoms first appeared; OR (2) after the employee has tested negative for COVID-19 two consecutive times, at least 24 hours apart, and employee is fever-free (without use of fever reducing medicine) and any respiratory symptoms have improved.
If an employee tests positive but is asymptomatic, the employee may return to the workplace (1) after at least 10 days have passed since they tested positive if they still have not developed any symptoms; or (2) after the employee has two consecutive negative COVID-19 tests, at least 24 hours apart. Cal-OSHA advises that employers defer to their local health department on specific return to work criteria.
Any time an employee cannot work due to COVID-19 (testing positive, being ill with symptoms, or being quarantined due to close contact with an infected individual), the employer needs to be sure the employee is informed of paid time off rights and provided with applicable paid time off. This may include paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) and/or state and local paid sick leave laws. The cities of San Francisco, Oakland, San Jose, Los Angeles, and Long Beach all have COVID-19 sick leave ordinances that supplement pre-existing paid sick leave and/or apply to employers who are not covered by the FFCRA. FFCRA provides up to 80 hours of paid sick leave to employees who work for private sector employers with less than 500 employees (or who work for a public employer).
If you are an employer with 50 or more employees and you have an employee who becomes seriously ill with COVID-19 (e.g. the employee is hospitalized), keep in mind that this could also trigger a lengthier entitlement to up to twelve weeks of unpaid leave under the FMLA/CFRA.
The workplace issues presented by the pandemic are formidable and change frequently. We recommend that you consult your business attorney about compliance before you re-open and any time an employee contracts, or is exposed to, the virus.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
Leave a Reply