Pandemic Anxiety in the Workplace
Over the past six months, employers have faced myriad unprecedented challenges to continue their operations, particularly as they reopen their workplaces and welcome employees back to work. Ever changing government guidelines and reopening restrictions further complicate employer decision-making. This blog post addresses two of the most immediate concerns facing employers:
How should an employer respond when an employee tests positive for COVID-19, and alternatively,
what happens if an employee refuses to come to the workplace because of COVID-19?
1. How should an employer respond when an employee tests positive for COVID-19?
Here are actions an employer should take to address both the needs of the COVID-19 positive individual and the rest of the staff.
Employee Who Tested Positive
If the employee is not already in isolation, send the employee home immediately.
Strongly encourage the employee to seek immediate medical care and consultation with his or her physician if he or she has not already done so.
Do not retaliate against the employee.
Communicate available sick leave and/or leaves of absence available to the employee under company policy, state/local law, and the Families First Coronavirus Response Act (“FFCRA”). In some cases, disability leave (and benefits) may be applicable.
Follow CDC guidance regarding the timeline of the employee’s return to work, based either on a testing or symptom-based strategy. You may require that the employee produce a note from their healthcare provider clearing their return to work.
When the employee is preparing to return to work, engage with the employee to determine if they need a reasonable accommodation to perform the essential functions of their work.
All information about employee illness must be maintained as a confidential medical record in compliance with the Americans with Disabilities Act (“ADA”).
Given the number of considerations and actions employers must take when an employee tests positive for COVID-19, we strongly recommend developing an incident report that outlines the following:
The locations the employee worked in during the past 14 days;
Last day/shift that the employee worked;
Date of symptom onset, test, and test results;
All employees, vendors, customers and other with whom the employee came into contact at work;
Whether the worksite followed COVID-19 safety protocol, such as the wearing of face coverings, whether appropriate social distancing protocol was followed by that employee and others, daily health screenings carried out, and whether the location has been carrying out appropriate disinfection and cleaning protocol.
Everyone Else
Without identifying the person who tested positive, notify everyone at the worksite that a team member tested positive for COVID-19 and identify that person’s last day working onsite.
When notifying individuals of their potential exposure to COVID-19, do NOT reveal the identity of the person who tested positive. You must ensure the privacy of the employee who tested positive.
Send everyone home while the worksite is deep cleaned according to CDC and OSHA guidelines. The CDC recommends that businesses wait 24 hours (if possible) before the workplace is cleaned to minimize transmission of airborne particles to those cleaning the space.
If practicable, transition employees to remote work to the extent feasible while the workplace is cleaned.
Determine the individuals (employees, vendors, clients, etc.) with whom the employee came into close contact while at work. According to the CDC, people who have had “close contact” with the person who tested positive are those who were within six feet of the COVID-19 positive individual for 15 minutes or more.
All employees who were in “close contact” with the infected individual should quarantine at home for 14 days after their last exposure and self-monitor for symptoms.
You may require any employees with symptoms of COVID-19 to stay home and not return to the workplace until they produce a fitness for duty certification from their healthcare provider.
Communicate available sick leave under FFCRA to employees under quarantine who are unable to work remotely.
All information about employee illness must be maintained separately from personnel files as confidential medical records in compliance with the ADA.
Finally, California employers that are required to record work-related fatalities, injuries, and illnesses must record a work-related COVID-19 fatality or illness like any other occupational illness. To be recordable, an illness must be work-related and result in death, days away from work, retired work, medical treatment (beyond first aid), loss of consciousness, or a significant injury/illness diagnosed by a health care professional.[1] Covered employers must record the case on their 300, 300A, and 301 or equivalent forms.
2. What happens if an employee refuses to come to the workplace because of COVID-19?
Employers face yet another conundrum as they re-open and transition employees back to the workplace: some employees refuse to return to work based on fear of contracting COVID-19. This is particularly true of employees who, due to a preexisting disability, are at higher risk from COVID-19.
If at all possible, we recommend that employers allow employees fearful of returning to work to work remotely. Where that is not possible, and the employee is at a higher risk due to a preexisting disability, there may be a reasonable accommodation that could offer protection and reassurance to the employee. Some of those accommodations (if not already implemented for all employees) to reduce contact with others due to a disability may include installing plexiglass, designating one-way aisles, and using other barriers, such as tables, to ensure minimum distances between customers and coworkers.
Beyond implementing physical distancing measures, we encourage employers to be flexible and creative in determining if alternative accommodations are possible under the circumstances. For example, consider whether the following are feasible, absent an undue burden:
temporary job restructuring of marginal job duties;
temporary transfers to a different position; or
modifying a work schedule or shift assignment.
Even without a disability that places an employee at higher risk from COVID-19, we recommend adopting a similar approach of flexibility to other employees fearful of returning to work. Frequent re-evaluation of employee concerns will likely be necessary as state and local health guidelines change.
[1] Time an employee spends in quarantine is not considered “days away from work” for recording purposes. To determine if a COVID-19 case is work-related for recordkeeping purposes, refer to guidance issued by the Department of Industrial Relations, which can be found here.
Author: Caitie Emmett, Associate.
The Maier Law Group is a boutique employment and data privacy firm that specializes in conducting workplace investigations, providing executive coaching, training employees, mediating both courtroom and workplace disputes (between two conflicting employees), and advising and counseling employers on HR and data privacy issues.
This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly at info@maierlawgroup.com.