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When the inevitable happens: Key questions employers should ask when an employee tests positive for COVID-19

In late February, when the United States had merely 100 positive cases of COVID-19, I advised employers to (1) recognize that they would play a big role in any pandemic to help or hurt efforts to slow the spread of the virus; (2) develop business continuity and recovery plans; and (3) comply with the law while protecting the company from liability.

With Idaho’s recent transition to Stage 1 under Gov. Brad Little’s Guidelines for Opening Up Idaho, many businesses will resume some operations at their physical locations. The next question for employers – if they have not yet faced this scenario – is what to do when an employee reports a positive COVID-19 test result. As with much of employment law advice, the answer is to plan ahead, draft policies now and communicate plans to employees. Ensure you have a documented, non-discriminatory policy to address anticipated scenarios, document actions taken and follow the policy when the anticipated situation arises.

When news of an employee who has tested positive for COVID-19 arrives, act with these concepts in mind:

First, remember our humanity and react appropriately. An employee may experience a great deal of fear and apprehension for themselves and their family members when receiving a positive test result. Strive to understand the issue from the employee’s perspective. Showing genuine empathy and offering support is important and demonstrates good leadership. Follow the guidelines from the Centers for Disease Control (CDC) and your local health department to isolate the employee. Then send the employee home (if he or she is not already there) for 14 days. Advise the employee to self-quarantine and seek medical attention. Assure the employee that you will not reveal his or her identity to co-workers, as you are legally obligated to keep such medical information confidential under the Americans with Disabilities Act (ADA). You may inform the employee’s direct manager that the employee is on leave, and, if questions arise, you may notify others that the employee is on non-disciplinary leave.

Second, react swiftly. Be able to pivot and respond to avoid further spread of the virus in the workplace. The actions of the company have the power to instill confidence in your employees and to avoid panic. You should follow the policies put in place in a uniform, non-discriminatory manner, yet be responsive to individual requests from employees for accommodations. In order to receive the best and fastest information from employees who do test positive, you should already have a policy that has been explained to employees, so they know what to expect.

Third, ask the following key questions with the assistance of human resources and your legal department:

·      Is it possible to determine where the employee contracted the virus? And if known, was it at your workplace?

·      Check state law to determine whether workers compensation applies. Hint: In Idaho and many states, it may depend upon the type of work performed and whether an occupational disease is related to that work. But determine whether you need to notify your workers compensation carrier.

·      Record the illness in your Occupational Safety and Health Association (OSHA) log.

·      Determine whether your employee has regular sick leave or other leave available.

·      Determine whether your employee is eligible for the new federal sick leave benefits under the Emergency Paid Sick Leave Act (ESLA).

·      Verify whether you have short-term disability and, if so, if it applies.

Fourth, implement your contract tracing policy. Generally, unless you are a medical provider or a long-term care facility, you will not have an independent duty to report COVID-19 cases to your local health district. However, in early April the EEOC clarified that an employer may disclose the identity of an employee who tested positive to a public health agency. You will want to know how to engage local authorities and cooperate with them in their contact tracing efforts, even as you perform your own efforts within your business.

Here are items to consider when forming your policy:

·      Establish a timeline for when the employee’s symptoms began to determine the extent to which you need to track the employee’s movements within the office and to be aware of an approximate time of when the employee may be cleared to return.

·      Ask the employee where he or she physically worked and what common areas they may have visited or frequented within the time period.

·      Contact those employees who have had direct contact with the positive-testing employee. Inform them of their contact with the infected employee without revealing the identity of the employee. Advise these employees that they should seek medical attention and quarantine for 14 days outside of the workplace.

·      Check calendars and ask about meetings and interactions with third parties such as vendors, clients and customers, and inform third parties as necessary and appropriate.

Fifth, your company should decide whether it is necessary and appropriate to close your business or a portion of your business for a time to accomplish the required deep cleaning. Consult the CDC and state resources for appropriate standards and which materials must be used, and to determine the extent of cleaning needed.

Sixth, learn from this experience. After a test positive case, a company may want to review or change its policies accordingly:

·      Did we encourage remote work where possible?

·      Did we establish and enforce social distancing protocols?

·      Were we able to sufficiently track who was in the office at what time and what areas of the office were visited?

·      Did we discourage in-person meetings?

·      Did we close or reduce access to common areas?

·      Did we have sufficient protective measures in place to prevent the spread such as sneeze guards for customer or client contact points, facial coverings, etc.?

Some businesses in Idaho have already experienced test positive cases. For those who have not, with the phased re-open plan in advance of a vaccine or other known effective medical countermeasures for COVID-19, employers are on the front line dealing with these issues. In the absence of direct authority at this time regarding if and where liability will fall for illnesses contracted at work, the government’s decision to reopen means employers should work to implement reasonable measures to reduce risk to the company’s employees, business partners, customers and the public at large.

Amy Lombardo is a shareholder at Parsons Behle & Latimer and a member of the employment and labor practice group. To contact Amy regarding employment or re-open policies, call (208) 562-4900 or send an email to alombardo@parsonsbehle.com.

About Amy Lombardo