Employer’s Guide to Responding to an Employee Positive COVID-19 Test

Social distancing has slowed the spread of the pandemic into many parts of Virginia, but the importance of maintaining both a safe workplace and positive employee morale remains a challenge.  In anticipation of the day when an employee reports that he or she has tested positive for COVID-19, employers need to have a plan.

Here are some suggested practical measures to be considered as part of your plan:

1. Continual Learning: Everyone is overwhelmed with the volume of information about different aspects of the pandemic, and sadly much of it is anecdotal or rumor and is unreliable.  It is important to develop a system that ensures that someone at the company is checking  the websites maintained by the CDC and the Virginia Department of Health (“VDH”) on a daily basis as new and updated information is regularly released as more information is known.  Keeping up-to-date on the latest recommended safety precautions is essential, particularly as we head into a phase where certain restrictions may be lifted.

2. Use Your Local VDH District Office: The VDH personnel are a great resource and they have access to the latest information and other resources that may be useful.  A directory of the VDH district’s contacts is located here.

3. New Protocols for Quarantine and Isolation: On April 9, VDH issued a new protocol which lays out the steps that employers should take in evaluating how long a quarantine or self-isolation and the steps to be taken to allow a return.  The protocol  is here.  Similarly, on April 8, 2020, the Director of the CDC announced that its interim guidance for workplaces had been modified for employees working in the Critical Infrastructure business. View here.

4. Contact Tracing & Follow-Up: Once an individual has tested positive, the VDH works with the affected employee to identify all persons with whom she/he had been in close contact (within 6 feet for 10 minutes or more) as part of its contact tracing obligations. View here.

While the VDH will be doing its own contact tracing, the employer must do its own, and  act quickly once it becomes aware that a worker who had recently been in the workplace has tested positive.  In addition to the employee, supervisors may need to be interviewed and access logs or security footage reviewed.  Employees who had close contact with the employee/patient over the last several days should be sent home. Those third parties who also had close contact must be contacted as well. In recent interim guidance, the CDC indicates that it is especially important for employers to identify those having close contact with an infected individual is the 48 hours before the employee became symptomatic.

Once employees who were in close contact are told to self-isolate, a system should put in place to ensure each one is contacted daily to determine their wellbeing and assess whether any of them have developed symptoms.  It is important to keep VDH informed of your steps as VDH may want to be involved in any high-risk contacts and they may have input into the need for quarantine. Keeping records of these efforts will be important in determining whether an OSHA incident report will be required.

5. Workforce Communications: If there is a positive test result employees are going to respond with a range of emotions and there is likely to be a lot of misunderstanding.  Involving the VDH as the local experts will help give your management team credibility and a measure of assurance that you are giving your employees the most accurate information possible, while at the same time protecting the confidentiality of the individuals involved. Beyond reinforcing best practices for personal wellness (hand washing, staying at home if they feel ill and maintaining good social distancing) your company may want to implement additional pre-shift checks, such as temperature checks.  It is also important in this context that management be alert to employees harassing or mistreating coworkers out of fear.  As the EEOC has recently reminded everyone, federal laws still apply in this context.

6. Privacy Concerns: All of the health information of your employees is confidential and must be treated like other medical information.   You should expect that coworkers will, at times, be insistent on knowing who tested positive, but under federal law an employer is not allowed to reveal the medical information or diagnosis of any individual employee, even during the pandemic.

To head off these questions, it is important to emphasize and reinforce the importance of the company’s obligation to maintain confidentiality, and at the same time reassure the workforce that the company is taking all steps possible to reduce any exposure in the workplace.  When contacting an employee about a possible “close contact,” it is essential that the name of the infected employee not be used or confirmed.  Simply say, something to the effect of “an exposure may have occurred in your work area and in an effort to be as safe as possible, we are asking you to stay at home for the next several days or until further notice.”

7. Clean and Disinfect: In addition to identifying close contacts, the company needs to determine where the employee worked, vehicles or equipment that the employee used, did the employee spend time in a breakout or meeting room, etc.  All areas of the workplace where the employee spent time should be closed until they receive a very thorough cleaning, and then a subsequent layer of disinfectant.  Cleaning without disinfectant does not comply with CDC guidance.  The CDC has specific guidelines on how to conduct this kind of workplace cleaning and they should be followed strictly.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.