[This is the first of two articles that will address specific situations employers are likely to face during the COVID-19 pandemic. This article focuses on what steps to take when an employee tests positive for COVID-19. The second article will focus on when to permit an employee who has tested positive for COVID-19 to return to work.]
As the number of confirmed cases of COVID-19 continues to grow, and as “non-essential” businesses begin to reopen, it is inevitable that many employers will (if they have not already), have an employee test positive for COVID-19. Every employer should have a policy in place addressing this scenario, and should also have its employees fully trained and prepared to execute that policy. Failure to take the correct steps in this scenario could be life-threatening. Below, we summarize guidance from the Centers for Disease Control and Prevention (“CDC”) and other sources that will provide employers with a game plan to keep both your employees and your workplaces safe, and to avoid legal exposure.
The Interim Guidance for Businesses and Employers from the CDC (most recently updated on March 21, 2020) provides, in relevant part, as follows:
- Employees who appear to have symptoms (i.e., fever, cough, or shortness of breath) upon arrival at work or who become sick during the day should immediately be separated from other employees, customers, and visitors, and sent home.
- If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (ADA). The employer should instruct fellow employees about how to proceed based on the CDC Public Health Recommendations for Community-Related Exposure. Those recommendations call for exposed co-workers to stay home until 14 days after last exposure, maintain social distancing, and self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
The CDC also recommends that “[i]nformation on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled,” and that those “at the facility with close contact within six feet of the employee during this time would be considered exposed.”
Surfaces in the workplace should be properly cleaned and disinfected. Refer to the CDC’s guidance on Cleaning and Disinfecting Your Facility for what steps are required at your worksite
It is also recommended to close off areas used by the ill employee and wait as long as practical before beginning cleaning and disinfection to minimize potential for exposure to respiratory droplets. Open outside doors and windows to increase air circulation in the area. If possible, wait up to 24 hours before beginning cleaning and disinfection.
The Center for Industrial Research and Service at Iowa State University has a useful checklist on “Responding to a COVID-19 Exposure at Your Business”, which includes additional recommendations concerning proper cleaning procedures.
The guidance issued by Connecticut Governor Ned Lamont, in the form of frequently asked questions on the State of Connecticut’s actions related to COVID-19, is consistent with the CDC’s guidance:
- If an employee is confirmed to have COVID-19 infection, employers should:
- Inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). The fellow employees should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
- Ventilate areas visited by that individual.
- Clean and disinfect all impacted spaces, especially commonly used rooms and shared equipment.
Both the CDC’s guidance and the Governor’s guidance should be applied on a fact-specific basis utilizing common sense. For example, if an employee has a suspected but unconfirmed case of COVID-19, employers should take the same precautions as noted above.
The time is now for employers to be proactive and have policies and procedures in place to effectively address this scenario. Consulting legal counsel is crucial to this process because all such policies and procedures should be legally compliant and consistent with the latest requirements, recommendations and guidance issued from both national and local authorities.