As employees across Arizona begin returning to the workplace from furloughs and temporary home offices, businesses that are reopening inevitably will face a critical question. What steps need to be taken if a reinstated worker reports that he or she has tested positive for Covid-19? With a total employed population in our State of approximately 3 million people and confirmed coronavirus cases approaching 30,000, we can extrapolate that perhaps one out of every 100 Arizona workers at some point will become infected. How should a positive test scenario be managed at a worksite? Answering this question involves, among other things, an intersection of OSHA and Centers for Disease Control guidelines, an interpretation of those guidelines, and some subjective analysis.
Prepare a Plan
The first step for a business in regulating an infected worker must be taken well before the worker tests positive. OSHA has made clear in recent guidance that all employers are expected to prepare a written exposure prevention, preparedness, and response plan that addresses, among other items, how the business will manage the situation if an employee in the workplace contracts the virus. Legal counsel can assist in creating a plan that is tailored to a particular business. The plan should cover the following points.
1. Maintain Employee Privacy
Employers generally must keep the identity of a worker who tests positive confidential. This may be challenging, but the ADA, HIPAA, and general privacy expectations dictate this requirement. Even though circumstances may make obvious who tested positive, employers nonetheless must take this approach. As a result, an employer’s tracing efforts should be based on information provided by the infected worker, rather than through campaigns to canvass co-workers about who may have been in contact with the infected worker.
2. Address the Physical Workspace
The CDC has published detailed guidance, which is available online, that informs employers about the process of sanitizing and restricting access to work areas occupied or visited by an infected worker. Adopt these protocols in the written plan and follow them.
3. Require a Quarantine
Send the infected worker home for a quarantine period that is defined by the worker’s particular situation. Consider the timing of the worker’s positive test, when his or her symptoms first started to emerge and the need for a confirmed negative test before the employee re-enters the workplace. Note that although the EEOC has advised that testing for the virus itself is permissible under the ADA, antibody testing is not. Furthermore, according to the CDC, antibody test results “should not be used to make decisions about returning persons to the workplace.”
4. Notify Co-Workers, Third Parties & Report Workplace Infections
Without identifying the infected worker, employers should advise co-workers as well as third parties (e.g., vendors, customers, clients, patients) who came into contact with the infected worker about the potential for exposure. Encourage these individuals to self-monitor for symptoms, take necessary precautions, seek treatment, and/or testing if necessary. In addition, employers now are required to notify OSHA if they suspect that a worker who tests positive likely contracted the virus in the workplace. Employers should consult OSHA guidance online for details about this new reporting requirement.
5. Assess and Execute on Possible Collateral Exposure
Perhaps the most complex aspect of addressing an infected employee scenario is how to manage his or her co-workers who may have been exposed. A thorough consideration of CDC guidance and OSHA recommendations suggests that individuals who have sustained contact of 15 minutes or more and within 6 feet of an infected person are at high risk for contracting the virus. Co-workers who meet these criteria should be excluded from the workplace to quarantine, while other employees who had only occasional contact should be encouraged to self-monitor for symptoms but may continue working on site.
6. Collaborating for Everyone’s Benefit
All employees should become familiar with the employer’s written plan so that everyone will know what to expect when faced with a positive diagnosis at work. Having clear and thoughtful processes in place should reduce anxiety and improve morale.
