As the economy reopens and employees return to work, all employers must be aware of their legal obligations in the COVID-19 era. As the workplace moves towards a new normal, some employers will encounter having an employee test positive for COVID-19. Without a proper plan of action, employers run the risk of being shut down again, harming their employees’ health and safety, as well as labor and employment litigation.
By following simple steps, every employer can mitigate risk and successfully crack the code if one of their employees tests positive for COVID-19.
FIRST STEPS AFTER A POSITIVE TEST
If an employee tests positive for COVID-19, employers should immediately instruct the diagnosed employee to self-quarantine at home. According to the Texas Department of State Health Services (as of May 2020), the diagnosed employee may return to work only when they meet these three criteria:
(1) At least three days (72 hours) have passed since recovery (resolution of fever without the use of fever-reducing medications).
(2) The individual has improvement in symptoms (e.g., cough, shortness of breath).
(3) At least 10 days have passed since symptoms first appeared.
If an employee or contractor has symptoms that could be COVID-19 and does not get evaluated or tested by a medical professional, the individual is assumed to have COVID-19 and may not return to work until the individual satisfies the three-step criteria listed above. If the individual who has symptoms that could be COVID-19 wants to return to work, they must obtain a medical professional’s note clearing the individual for return based on an alternative diagnosis.
Furthermore, employers must instruct any employee or contractor with known close contact to a person who is lab-confirmed to have COVID-19 to self-quarantine for fourteen days from the last date of exposure (with an exception granted for healthcare workers and critical infrastructure workers).
An employer’s notification to the affected employee, instructing them to self-quarantine, must remain confidential. Any disclosure, accidental or otherwise, of an affected employee’s name or identifying information opens the employer up to the risk of privacy claims.
While instructing the diagnosed employee, as well as any exposed employee, to self-quarantine, employers must consider the implications surrounding the diagnosed and exposed employees’ absences. As of April 1, 2020, the Emergency Paid Sick Leave Act requires private employers with fewer than 500 employees to offer two weeks paid sick leave for various qualifying reasons. What’s more, the Emergency Family and Medical Leave Expansion Act requires private employers with fewer than 500 employees to offer up to 10 weeks of paid leave for childcare due to COVID-19-related school or place-of-care closures.
Even if large employers need not provide two weeks of paid sick leave, employers should consider doing so. By providing the two weeks of paid sick leave, an employer can encourage a diagnosed employee to self-quarantine for the time frame recommended by the Center for Disease Control (CDC) and create peace of mind for the employee before they return to the workplace. If paid sick leave is unavailable, the employee may be able to use other forms of accrued paid time off, such as vacation time.
NEXT STEPS: REPORT, CLEAN, AND DISINFECT
Although not required for most businesses, I strongly recommend employers consider reporting positive cases to their local health departments, especially businesses open to the public or who have a cluster of positive cases. Local health agencies can provide employers with the best resources and guidance for the next steps, public notice requirements, as well as adherence to local, state, and federal guidelines.
After reporting to the local health agency, you should clean and disinfect the areas where the diagnosed employee worked. Before cleaning and disinfecting, employers should ensure they train their employees on the hazards of using cleaning chemicals per the Occupations Safety and Health Administration’s (OSHA) Hazard Communication standard. Third-party cleaners are not required, but because your staff is likely not trained and may lack personal protective equipment (PPE), most businesses would benefit from using third-party, professional cleaners. Once in compliance with the OSHA standard, the CDC recommends three steps for disinfecting facilities that do not house people overnight:
(1) Close off the contaminated area and increase air circulation for at least 24 hours, or as long as practical, before beginning to clean and disinfect.
(2) Clean and disinfect all frequently touched surfaces, including, but not limited to, furniture, bathrooms, common areas, and all electronic equipment and devices such as phones, computers, and keyboards. The employers should clean the contaminated area first using soap and water, followed by disinfecting with either an EPA-registered household disinfectant or a diluted household bleach solution if appropriate for the surface.
(3) Finally, employers should ensure there is proper ventilation and available protective equipment during the cleaning and disinfecting stage, and that employees follow all manufacturer instructions for application and use.
After cleaning and disinfecting, employers must dispose of the regulated waste and PPE according to OSHA’s Bloodborne Pathogen standards.
FUTURE: PLAN, PREPARE, AND EXECUTE
Moving forward, employers can get ahead of the curve, no matter if one of their employees has tested positive for COVID-19. The Texas Department of State Health Services provides simple guidelines for businesses to follow on their own, such as hand washing before entering the business, maintaining at least a six feet distance between employees, and cleaning shared spaces and regularly touched surfaces often.
One of the most important things employers can do is to work with their local and state health departments to develop protocols that ensure a safe working environment and remain compliant with updated guidance. By developing precautionary plans and continuing to communicate with the local health officials, employers can successfully mitigate their risks and get back to work.
Jacob M. Monty is the managing partner of the Houston-based law firm, Monty & Ramirez LLP. Monty is board certified in labor and employment law by the Texas Board of Legal Specialization. He regularly advises employers on a wide array of labor and employment issues. Monty & Ramirez LLP is an employment, labor, and business immigration law firm. Please visit www.montyramirezlaw.com for more information.