2021 California COVID Guide: What To Do If Employees Test Positive for COVID-19

Davis Wright Tremaine LLP

Given the barrage of local, state, and federal COVID-19 legislation in 2020, California employers may be confused as to what to do now—in 2021—when employees test positive for COVID-19. Here is a five-step guide of what to do in that situation—as of mid-February 2021. With that said, regulations and public health guidance continue to evolve, so employers should remain abreast of applicable orders related to COVID-19.

Step One: Worker's Compensation Paperwork and Contact Tracing

  • Provide a workers' compensation claim form to the employee who tested positive for COVID-19 and alert your workers' compensation carrier.
  • Determine the date/time the COVID-19 case was last on site, and (if possible) the date of testing and the date of onset of symptoms. If the employee has not been on site for weeks (or months), jump to Step Five.
  • Assess who may have experienced "COVID-19 exposure" at work, defined as interacting within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period within or overlapping the "high-risk exposure period."1

Step Two: AB 685 Notices

  • For co-workers suspected to have had COVID-19 exposure at work:
    • Notify them (and any authorized union representative) within one business day; and
    • Offer them COVID-19 testing at no cost during their working hours.
  • Provide written notice to all employees and subcontractors (and their union representatives) who were on the worksite premises during the COVID-19 case's infectious period. (Be sure not to provide the identity of the COVID-19 case unless you receive explicit approval to do so.)
    • This notice must be provided within one business day of the employer learning of the potential exposure. For more information on the notice, our advisory is here.
  • Notify the local public health agency if the situation rises to an "outbreak" at the work site.2

Step Three: Assess Cal/OSHA Obligations

  • Comply with the obligations imposed under Cal/OSHA's Emergency Temporary Standard (ETS), which went into effect on November 30, 2020, by:
    • Excluding employees from the workplace who have been exposed to the virus, or who have the virus, until they are no longer an infection risk (employees excluded from work under the Cal/OSHA ETS must be paid "exclusion pay," with limited exceptions, see Step Five, below);
    • Investigating the exposure to figure out whether workplace conditions could have contributed to the risk of exposure and, if so, what corrections would reduce exposure; and
    • If an "outbreak" under the ETS occurred, engaging in the required heightened obligations, including with regard to employee testing, hazard investigation and correction, and information reporting to local health departments. If 20 or more COVID-19 cases in an exposed workplace are experienced within a 30-day period, "major outbreak" status is triggered, which means even more heightened obligations.
  • If a written COVID-19 Prevention Program that complies with the ETS is not already in place, unless one of the narrow exceptions applies, prioritize preparing such a plan in order to comply with the ETS. See DWT's prior advisory for a detailed discussion of what a COVID-19 Prevention Program requires.

Step Four: Assess Local Stay-At-Home Orders

  • Check the applicable local stay-at-home order to assure full compliance.

Step Five: Assess Sick Leave and Leave of Absence Considerations

  • COVID-specific or standard sick leave: Assess whether any COVID-specific or standard sick leave needs to be provided to the COVID-19 case, and whether more traditional means of responding to an employee's illness need to be employed.
  • Cal/OSHA ETS Exclusion Pay: If any employee is excluded from work due to exposure to COVID-19 or due to having an asymptomatic case of COVID-19, "maintain [the] employee's earnings, seniority, and all other employee rights and benefits." Existing sick leave benefits may be used to cover this cost.3
  • Family Medical Leave Act (FMLA)/California Family Rights Act (CFRA): Ascertain whether an employee is eligible to take job-protected leave under the FMLA or CFRA and, if so, whether the employee's situation is a covered reason, such as their own illness if it involves inpatient care or continuing treatment by a healthcare provider, or a comparable illness of a covered family member. For eligible employees, document that FMLA/CFRA is being used.
  • Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA): Because an employee with a COVID-related illness may well qualify as disabled depending on their symptoms, consider whether an accommodation is in order under the ADA and FEHA. Depending on the circumstances, consider offering a job-protected leave of absence as a form of accommodation, regardless of whether the employee is eligible for or has exhausted sick leave and/or FMLA/CFRA leave.

We hope this checklist is helpful to employers as they encounter positive COVID cases.


FOOTNOTES

1  For symptomatic cases, the "high-risk exposure period" is two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved. For asymptomatic cases, from two days before until 10 days after the specimen for their first positive test was collected.
2  "Outbreak" is currently defined by California Department of Public Health as "three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households."
3  Even if sick leave is exhausted, this pay must be provided, unless one of the following exceptions applies: (1) the employee is unable to work for reasons other than protecting co-workers (e.g. the employee is hospitalized or otherwise unable to work due to symptoms, the branch where the employee works is closed, the employee is on previously-scheduled time off); or (2) the employer can demonstrate that an employee is excluded due to exposure (not due to actually having COVID-19), and was not exposed to the virus at work or in the course of work-related duties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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