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Nov 04, 2021

Q&A: Know how to respond to positive COVID-19 result

Q&ACOVID-19DisabilityEmployee BenefitsLeave LawsSafety and HealthWorkers’ Comp 

Question: My employee says they tested positive for COVID-19 (coronavirus). There have been so many changes to the requirements that I’m not sure what I should do anymore. Please help!

Answer: Start with current federal guidance and then check your state and local requirements. The Centers for Disease Control (CDC) web page on Quarantine and Isolation lays out the federal standards (updated 10/19/2021). After testing positive, the employee should stay home (isolate) and self-monitor for symptoms of COVID-19. If they never develop symptoms, they may return to work 10 days after they submitted the sample that resulted in a positive test. If they have symptoms, most people may return to work when they meet all three of these conditions: (1) 10 days have passed since the symptoms first appeared; (2) they’ve gone at least 24 hours with no fever without the use of fever-reducing medications; and (3) other symptoms of COVID-19 are improving (except loss of taste and smell, which may take weeks or months to improve). However, people who were severely ill with COVID-19 may need to wait longer to return (up to 20 days after symptoms first occurred). People with weakened immune systems should talk with their health care provider, who may recommend testing before they return.

You may be wondering whether you can require your employee to provide a fitness-for-duty note before reentering the workplace. If you take this approach, you should apply it uniformly to everyone, and not just to employees you know have a disability or serious health condition that could compromise their immune system. However, requiring a fitness-for-duty evaluation may delay some employees’ return, which could raise practical challenges if you’re short-staffed. Instead, you may want to consider simply providing instructions to employees on the time frames and requirements for returning. You can require them to inform you of the date they submitted a sample resulting in a positive test and the date they first developed symptoms (if any), so you can begin measuring the 10-day period. You should keep in regular contact to ensure you and the employee are both clear on the anticipated return date. You can also suggest that they talk with their health care provider to ensure that they’re following all recommendations for a safe return.

Below is a summary of the requirements in Arizona, California, Idaho, Montana, Oregon, and Washington. You should also stay on top of any special city or county protocols that may apply in your area.

Arizona: The Arizona Department of Health Services follows the CDC approach outlined above, as explained in Arizona’s guidance on release from isolation and quarantine (updated 11/2/2021).

California: The California Department of Public Health (CDPH) follows the CDC approach outlined above, as explained in CDPH’s guidance for isolation and quarantine (updated 10/22/2021). In addition to directing the sick employee to isolate, Cal/OSHA’s emergency temporary standard (ETS) for COVID-19 requires covered employers to take the following steps after being informed that a COVID-19 case was present in the workplace:

  • Identify exposed employees: Determine when the sick employee was last in the workplace, as well as the date of testing/diagnosis and onset of symptoms (if any), so you know the high-risk exposure period (which begins 2 days before the employee submitted the sample resulting in the positive test or 2 days before experiencing symptoms, whichever occurred first, and ends when the isolation period under CDC guidance ends). Then determine which employees had close contact with the sick employee (15 cumulative minutes within 6 feet during a 24-hour period).
     
  • Notify all employees at the worksite: For employees who were at the worksite during the sick employee’s high-risk exposure period, notify them in writing (using personal delivery, email, or text message) within 1 business day that they may have been exposed. If you know the employee hasn’t received the written notice or isn’t literate enough to understand it, you must provide verbal notice as soon as possible. You must also notify the employees’ union representative, if any, as well as any independent contractors and the employers of any other workers who may have been exposed. The notice must describe your cleaning and disinfection plan consistent with CDC and Cal/OSHA COVID-19 ETS requirements.
     
  • Exclude exposed employees: Unvaccinated employees who had close contact with the sick employee must quarantine at home to see whether symptoms develop, following CDPH guidance (explained in a separate article in today’s newsletter). Vaccinated employees don’t need to quarantine unless they develop symptoms or test positive.
     
  • Offer testing to exposed employees: During working hours, make free COVID-19 testing available to employees who had a close contact with the sick employee, except for exposed employees who were fully vaccinated and remain asymptomatic, or who already contracted COVID-19 within the last 90 days and recovered. You don’t have to provide on-site testing, but you must pay exposed employees for their time to leave the workplace and obtain the test and you must reimburse them for travel expenses (such as business mileage or the cost of public transportation to get to and from the testing site).
     
  • Provide benefits information to exposed employees: For exposed employees who are eligible for free testing, you must also inform them of the availability of COVID-19-related benefits under federal, state, or local law, as well as under company policies, labor agreements, or contracts. Examples include paid sick leave, leave to obtain or recover from a COVID-19 vaccination, and workers’ compensation leave. You must also explain their right under Cal/OSHA’s COVID-19 ETS to be paid during their time off and to be reinstated to their regular job afterward, if they’re excluded from work due to a work-related exposure. They must receive their regular wages unless they’re already receiving temporary disability payments or workers’ compensation time loss payments, or the exposure wasn’t work-related. If you determine that an exposed employee isn’t eligible for this exclusion pay, you must notify them in writing of your denial and the reason. You cannot apply their regular paid sick leave balance under California state law to the time off. You may apply company-provided paid sick leave (over and above legally required paid sick leave), but it’s unclear whether you may also apply accrued paid vacation or other paid time off (PTO).
     
  • Record and track cases: You must have a system in place to record and track all COVID-19 cases (regardless of whether they’re work-related) with the employee’s name, contact information, occupation, work location, date of the last day at the workplace, and the date of a positive COVID-19 test and be prepared to share this information with health authorities upon request.
     
  • Investigate: Determine whether workplace conditions contributed to the exposure and whether anything could be done to reduce the risk of spreading the virus.
     
  • Address outbreaks: You must take additional steps if multiple employees have COVID-19. Specifically, if 3 or more employees within an exposed group have COVID-19 and visited the workplace during their high-risk exposure period at any time during a 14-day period, you must follow the Cal/OSHA regulations at 8 CCR 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks). CDPH defines this situation as an outbreak which requires you, under California Labor Code 6409.6(b), to notify the local public health department within 48 hours or one business day, whichever is later, and keep them informed of any subsequent laboratory-confirmed COVID-19 cases at the worksite. If 20 or more employees within an exposed group have COVID-19 and visited the workplace during their high-risk exposure period within a 30-day period, you must follow the Cal/OSHA regulations at 8 CCR 3205.2 (Major COVID-19 Outbreaks).

Idaho: There’s no state-specific requirement, so we recommend following the federal guidelines detailed above.

Montana: There’s no state-specific requirement, so we recommend following the federal guidelines detailed above. While not directly related to this topic, remember that Montana employers are prohibited from discriminating against individuals on the basis of vaccination status. For a refresher on this law, check out our original reporting and follow-up article after the Montana Department of Labor released a series of frequently asked questions.

Oregon: Oregon OSHA’s permanent rule, Addressing COVID-19 Workplace Risks (OAR 437-001-0744), which we previously reported, requires you to have a policy that covers this situation. Oregon OSHA developed a model policy, available in both Word or PDF format. Follow your policy to notify workers if they were exposed to the sick employee at work. Here are the basic steps you need to take:

  • Isolate: Your COVID-19 positive employee needs to stay home and isolate until they’re able to safely return to work per current CDC guidelines listed above. Employees can use Oregon sick leave or other paid time off if available. As we previously reported, certain health care workers are entitled to paid time off, but otherwise the isolation or quarantine time can be unpaid. Send the sick employee a written notice outlining their rights and responsibilities. See Vigilant's Model Form, Oregon Quarantine or Isolation Notice for COVID-19.
     
  • Notify close contacts (exposed workers): Determine if the sick employee had “close contact” (15 cumulative minutes within 6 feet during a 24-hour period) with anyone at work. Anyone who had “close contact” with the sick employee needs to be notified that they’ve had close contact with a positive COVID-19 case. This notification can be a phone call, text message, or email. All unvaccinated asymptomatic employees who have had “close contact” need to stay home and quarantine to see if they develop symptoms. They also get the Oregon Quarantine or Isolation Notice for COVID-19. All vaccinated employees need to monitor themselves for symptoms for 14 days, but don’t need to quarantine.
     
  • Notify workforce (affected workers): Notify all employees at the facility where the exposure occurred that a person with COVID-19 was present there. The Oregon OSHA model policy (linked above) has sample notification language.
     
  • Facilitate return to work: Allow employees who have to quarantine or isolate to return to their job when they are able and don’t take any adverse action (such as applying attendance points) against the employees.

Washington: The Washington COVID-19 guidance follows the federal guidance detailed above. Washington employers are required to comply with the Department of Labor and Industries (L&I) emergency rules on reporting and notification requirements for COVID-19 (WAC 296-62-600), as well as orders from the Department of Health (DOH). Here are the requirements:

  • Isolate: Your COVID-19 positive employee needs to isolate at home until they meet the return-to-work criteria recommended by the CDC, as explained above. Employees can use their Washington paid sick leave or any other available paid time off; otherwise the isolation time can be unpaid.
     
  • Notify close contacts: Determine if the sick employee had “close contact” (15 cumulative minutes within 6 feet during a 24-hour period) with anyone at work during the contagious period (starting two days before they had symptoms or tested positive and through the end of their isolation period). Anyone who had “close contact” must be notified. This notification can be a phone call, text message, or email. All unvaccinated employees who have had “close contact” need to stay home and quarantine to see whether symptoms develop. All vaccinated employees need to monitor themselves for symptoms for 14 days, but don’t need to quarantine.
     
  • Notice to all employees: Notify all employees, and the employers of any subcontracted employees, who were at the same worksite as the infected employee. This notice of the potential exposure must be provided within one business day. Customize our Model Form, Washington Notice of Disease Exposure, for your notice to exposed employees.
     
  • Clean: If the employee who tested positive for COVID-19 was at work within the previous 24 hours, follow the CDC and L&I guidelines for cleaning and disinfecting the facility.
     
  • Report: DOH prefers businesses to report any case of COVID-19 in the workplace, but all Washington employers are required to report to their local health jurisdiction (county health department) if they are aware of 2 or more employees who develop confirmed or suspected COVID-19 within a 14-day period. The DOH COVID-19 guidance for non-health care businesses is a great resource on Washington employer responsibilities.
     
  • Report an outbreak to L&I: If you have more than 50 employees at a worksite, then within 24 hours of confirming that 10 or more of your employees at the worksite have tested positive for COVID-19, you must report the positive tests to L&I. See the latest L&I COVID-19 workplace safety requirements and Q&A for reporting outbreaks for more information.

In all states, when notifying potentially exposed employees, don’t reveal the identity of the person who tested positive for COVID-19. If you’re uncertain what procedures to follow in a particular situation,  contact your Vigilant Law Group employment attorney for guidance.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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