The following overview provides steps employers should be prepared to take in the event an employee has either a probable or confirmed case of COVID-19.
What immediate next steps must be taken at the workplace?
Decontaminate the affected areas (after waiting 24 hours). CDC guidelines require employers, upon the discovery that an employee has a probable or confirmed COVID-19 diagnosis, to close off the area visited by that employee, open windows and doors to ventilate the area, and clean and disinfect all shared areas and equipment the employee would have accessed. In addition, the CDC as well as Pennsylvania Department of Health (the PA DOH) guidelines and Frequently Asked Questions (the PA FAQs) require employers to wait a minimum of 24 hours, or as long as practical, before beginning cleaning and disinfection.
Implement a Temperature Screening Policy. The EEOC had previously determined that temperature screening for COVID-19 in the workplace is permissible, but Pennsylvania guidelines explicitly require that once a business is exposed to a probable or confirmed COVID-19 case, it must implement a temperature screening policy whereby employees are sent home if they have a temperature of 100.4 degrees Fahrenheit or higher. According to the PA FAQs, the temperature checks should continue for at least 14 days after exposure; however, the PA DOH recommends that employers continue to conduct temperature checks even after the 14 day period ends, particularly in areas of the state with high positive case numbers.
In New Jersey and Delaware, while the temperature screening requirement is not automatically triggered by a positive case of COVID-19, temperature checks are required for New Jersey agriculture employees and those in the food and beverage industry, while in Delaware they are required for employees at “high-risk businesses” and strongly recommended for all other employees.
Note that employers that have implemented temperature screening are subject to various confidentiality restrictions, more information about which is available here.
What can (and should) be disclosed to other employees?
According to the PA DOH guidelines, employers should “[p]romptly notify employees who were close contacts of any known exposure to COVID19 at the business premises.” CDC guidance defines “close contact” as “being within approximately six feet (two meters) of a person with COVID-19 for a prolonged period of time,” which generally means 15 minutes or more. Employers should notify potentially exposed employees of the exposure; however, the name and personal identifiable information of the co-worker who tested positive should not be revealed, unless that person voluntarily consents to such disclosure. Any possibly exposed employees who are symptomatic should then self-isolate and follow the CDC’s recommended next steps, while potentially exposed employees without symptoms should remain isolated and practice social distancing for 14 days. Note the CDC guidelines for when asymptomatic employees may return to work are different for “critical infrastructure employees”.
What Governmental Agencies should be notified?
OSHA. If an employer believes the employee contracted the virus while at work, the employer may need to notify OSHA and otherwise comply with OSHA’s recording requirements, updates to which we previously covered here.
The CDC or State Health Officials. Employers are not required to notify the CDC or state health officials if an employee tests positive; rather it is the responsibility of the health care provider who confirms the positive test result to relay that information to the relevant agencies.
When can the employee return to work?
The CDC’s guidelines on returning to work vary depending on whether a person has exhibited any symptoms.
Guidelines for Symptomatic Employees. Symptomatic employees with a suspected or confirmed COVID-19 diagnosis should not return to the workplace until:
Depending on the availability of tests, the CDC also provides benchmarks for returning to work via a “test-based strategy”, according to which a patient must be fever-free, show improvement of respiratory symptoms and obtain two negative test results collected over 24 hours apart; however, employers should be mindful that healthcare providers may be reticent to recommend multiple tests given the limited availability of testing supplies and lab capacity. Therefore, a more logistically sound approach for most employers is one consistent with the above symptom-based strategy.
Guidelines for Asymptomatic Employees. Employees who have tested positive for COVID-19 but have not exhibited any symptoms may return to work once at least 10 days have passed since the date of the positive test, assuming they have not subsequently developed symptoms since that time. If they do develop symptoms, then the above-described benchmarks for symptomatic employees should be used.
The COVID-19 Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Jonathan Krause is a partner in the Litigation Department at Klehr Harrison.