By: Robin E. Largent Carothers DiSante & Freudenberger LLP © 2020
We have been getting more and more questions from employers about what to do if they have an employee who reports that they have tested positive for COVID-19. Cal-OSHA likely has been getting similar inquiries and, as a result, recently issued guidance for employers on the specific topic of handling outbreaks in the workplace. That guidance is here. Importantly, Cal-OSHA cautions that even a single positive case may quickly turn into an outbreak among employees. Furthermore, because workplace circumstances and settings vary greatly, Cal-OSHA recommends that employers contact and consult with their local health department to plan and coordinate a response.
In addition to working with the local health department on specific responses protocols, the employer also must keep in mind Cal-OSHA reporting requirements. Employers must report serious injuries, illnesses or deaths in the workplace immediately. Cal-OSHA instructs that for COVID-19 purposes, this means COVID-19 related inpatient hospitalizations or deaths, and employers should report these events even if work-relatedness is uncertain.
Employers must also keep in mind Governor Newsom’s May 6, 2020 Executive Order providing, 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 work comp form and let the carrier determine coverage.
Although the employer should confer with the local health department on specific protocols for handling a workplace outbreak involving one or more employees, some things that employers will need to consider are the following:
- 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;
- Consider providing COVID-19 testing for other employees. Remember that 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. Also remember that employees cannot be required to undergo COVID-19 antibody testing, but only testing for active infection.
- Where testing is not feasible, try to utilize 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 the outbreak involves numerous employees with close contacts with the infected employee, 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). Of course, all employees should 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 that they should follow.
Of course, 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. By way of reminder, the 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.