Best in Law: Unmasking COVID-19 Workplace Rules

Best Best & Krieger LLP

Best Best & Krieger LLP

Brian Reider and Joseph Ortiz Discuss Employer Responsibilities in the Southern California Newspaper Group

It is inevitable that virtually every business will have an employee with a positive COVID-19 result. Some employees will have had symptoms while others will not.

What should a business do next?

Let’s look at hypothetical Company X, which was recently advised that employee Jack had a positive test result and his co-worker, Jill, had no symptoms but also had a positive test result. Now Jack and Jill both want to come back to work. How should the company decide if either or both Jack or Jill can return?

There are a number of resources to go to for guidance, including the federal Centers for Disease Control and Prevention and the California Department of Public Health. The standards are evolving as we learn more about the virus. As a preliminary matter, both the CDC and CDPH recommend employees self-quarantine for 14 days if they have been exposed to COVID-19.

In many cases, however, such as with Jack and Jill, the first indication of COVID-19 may be a positive test on an employee without symptoms. Recently, the California Department of Fair Employment and Housing said that, in line with federal guidance, employers may require employees to submit to COVID-19 testing, but not antibody testing, before permitting employees to enter the workplace.

Obviously, with positive test results, Jack and Jill must rely on some sort of test to indicate when it is safe to return to work.

Medical providers rely primarily on two standards to determine when an employee with symptoms may return to work:

–The first is a “symptom-based” strategy that requires that at least 10 days have passed since symptoms appeared and at least 24 hours without fever (without the use of fever-reducing medications) and
–The second is a “test-based” strategy that relies on the absence of symptoms (without medication) and at least two negative consecutive tests.

More recently, the CDPH indicated employees who have never developed symptoms may return to work 10 days after the date of their first positive test. Does this mean that Jack and Jill can return to work in 10 days? Maybe.

The employer must be mindful that Jack and Jill may be living with others who are positive for COVID-19 and who may cause renewed exposure. Exposure to COVID-19 may require a 14-day quarantine under CDC and CDPH guidelines.

So, in the case of Company X, if Jack and Jill both had a positive test on Sept. 20, and have both had a normal temperature since at least Sept. 30, the company would be within current guidelines to allow Jack and Jill to return to work on Oct. 4 (again, presuming there is no other reason to continue quarantine). Of course, protocols including temperature screening, wearing masks and social distancing should continue to be followed.

Can Company X then require that Jack and Jill (and all other employees) wear a mask at work?

The answer is yes, and the rules should be implemented by a written policy.

The State of California and CalOSHA have both indicated that all workplaces should have a written “worksite specific plan” that articulates their COVID-19 protection protocols. The company should also have an Illness and Injury Prevention Program supplement that addresses COVID-19 response.

The written plan also has to state who is responsible for the COVID-19 protocols, including training and enforcement. Enforcement should mention discipline, up to and including possible termination, for failure to comply.

Companies that do not put policies in place, or do not enforce them, face serious consequences. Given the mask mandates, if the company does not have a policy or does not enforce it and someone gets seriously ill or dies, the company would be open to a “serious citation” from CalOSHA, at a minimum. There is also likely liability exposure for the injury (or even death) of any coworker, vendor or customer who allegedly fell ill due in part to the company’s failure to enforce the mask protocol.

One thing we have learned in the past six months is that, of all of the tools available to help combat COVID-19, masks are the simplest, most effective way to keep all people safe.

The CDPH guidance is that masks should always be worn when at work or when performing work off-site when interacting in person with any member of the public; working in any space visited by members of the public, regardless of whether anyone from the public is present at the time; working in or walking through common areas, such as hallways, stairways, elevators and parking facilities or when in any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.

If we all follow this guidance at work, we will all be safer and healthier.

This article first appeared in Daily Bulletin and other Southern California Newspaper Group publications online on Oct. 9, 2020. Republished with permission.

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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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