Exclude the infected employee from the premises
As a starting point, employees should be advised not to come to work if they have been diagnosed with COVID-19, or should be instructed to leave the business premises if they learn of such diagnoses while at work. The employee should be instructed not to return to work unless and until (s)he is cleared to do so.
While it may be tempting to ask employees to provide a doctor’s note as proof of their illness, current CDC guidance advises against this because of the strain the coronavirus has placed on healthcare providers and medical facilities, which may not be able to provide documentation in a timely manner. Additionally, while the CDC encourages employers to keep an open line of communication with local/county health departments, there currently is no mandatory reporting requirement.
On a separate but related note - and a question we have received from countless businesses - recent guidance issued by the US Equal Employment Opportunity Commission suggests that it may be permissible for employers to require employees to report a positive COVID-19 diagnosis.
Identify everyone who has had continuous or close contact with the infected employee
The infected employee should be asked to identify all other individuals - e.g., colleagues, clients, vendors, guests - with whom the (s)he had continuous and close contact within the preceding 14 days. “Continuous” means working in the same space or having in-person meetings together. And close contact is defined by the CDC as (1) being within approximately 6 feet of a COVID-19 case for a prolonged period of time or (2) having direct contact with infectious secretions (e.g., being coughed on).
To determine whether and to what extent additional employees need to be quarantined, the employer should consider the following information to the extent feasible:
- When did the employee test positive for COVID-19, and circumstances leading to the test;
- Identify, to the extent applicable, the “production area” - e.g., the proximity within which the infected employee worked with others (and who those others were), the number of shifts (e.g. 3/day), the equipment used during shift - and the typical cleaning, if any, of the “production area” after each shift;
- Check your schedules to try to determine the identity of the co-workers with whom the individual worked;
- Determine the location of all places in the facility the employee accessed in the 14-day period preceding diagnosis, such as rest rooms, break rooms, common areas, lockers, etc.; and
- Determine the company’s current procedures and policies for complying with federal, state, and local COVID-19 guidance and what it has communicated to its employees in that regard.
Other steps may be appropriate or warranted depending on the individual circumstances.
Communicate with potentially impacted third parties
Once you have identified the individuals with whom the employee had or may have had continuous or close contact, you should notify such individuals that they may have been exposed to COVID-19. If feasible, inform the identified individuals via phone - versus written communication - and, ideally, separately.
Instruct these individuals that they are required to exclude themselves from the company’s premises for 14 days (depending on the individual circumstances, a shorter period may be possible, with the full 14-day period nevertheless remaining the safest approach) and recommend that they self-quarantine out of an abundance of caution. Employers should also consider notifying other co-workers who, although not identified, were reasonably likely to be in the identified affected areas.
Critically, you should not disclose the name or other identifying information of the infected employee. There may be extremely limited circumstances where this may be permissible, but it is imperative to consult with counsel before doing so.
Implement social distancing and other mitigating measures
Even after you have notified potentially impacted individuals, in what can serve as both reactive and proactive measures, you should immediately implement mitigation strategies, such as:
- Social distancing (maintaining a distance of six feet between individuals at all times);
- Staggering shifts;
- Staggering breaks and lunches;
- Expanding lunch rooms and moving tables such that individuals do not have as much of an opportunity to sit close to each other;
- Reducing headcount to minimal operations, and trying to use consistent crews such that individuals do not frequently move between crews; and
- Considering using temperature and respiratory screening.
Again, the appropriate response in this regard will depend on the particulars of the workplace.
Perform routine environmental cleaning
If an employee has a confirmed case of coronavirus, you will likely be responsible for disinfecting the workplace. Ultimately, the consideration of and strategy for when and how to conduct facility disinfection should be a risk-based decision based on (1) the level of internal infection within the workforce (i.e., one isolated employee vs. multiple employees engaged with large groups); (2) the external infection risk associated with their tasks; and (3) the essential nature of the business (with particular focus on the broader public health).
In conducting facility disinfection, employers should follow CDC guidance regarding cleaning and disinfection and EPA’s list of registered disinfecting agents. Workstations, common areas, countertops, doorknobs, and other frequently used surfaces in the workplace should be cleaned with CDC-approved disinfectants. Employees should also be reminded to wash their hands frequently and avoid touching their eyes, nose, and mouth.
Potential risk exposure
Employers that fail to take appropriate remedial measures upon discovering that an employee has been diagnosed with COVID-19, run the risk of, among other things:
- More employees getting sick, thereby disrupting operations to a much larger extent;
- Public health authorities getting involved and shutting operations down more broadly;
- Employees refusing to work in the space because of a lack of adequate precautions, which might, depending on the circumstances, be considered protected, concerted activity under the National Labor Relations Act;
- Unfavorable press coverage;
- Litigation based on exposure of employees to a known risk of serious harm; and
- Violation of the Occupational Safety and Health Administration General Duty Clause, which requires every employer to provide a workplace free from recognized hazards.
On top of this, employers may also have potential tort liability for negligent, reckless, and willful conduct related to the presence or interjection of COVID-19 in the workplace.
“Critical Infrastructure” Employees/Exceptions to the Rule
On a final note, there may be some exceptions or modifications to the above pursuant to “shelter in place,” “remain at home,” and similar orders issued by state or local governments related to the operations of “essential” businesses, and also for employers in a “Critical Infrastructure Position.” For such positions, CDC guidance suggests that local health authorities may allow personnel who had close contact with a confirmed case of COVID-19 to continue to work. Critical Infrastructure includes companies involved in medical supply, disinfectant, food supply, and potentially more. If an employer identifies as a Critical Infrastructure Position, it should isolate the infected employee and continue operations until it can procure recommendation from a local health department. If everyone at the worksite has to isolate, the company can temporarily close down until further guidance can be received from the local health department. Note that the above information related to Critical Infrastructure Positions is only guidance, and therefore could be superseded by orders of the health department in the locality at issue. Again, exceptions may also exist pursuant to “shelter in place,” “remain at home,” and similar state and local orders.
As the laws and best practices governing COVID-19 issues continue to rapidly change, please consult with your Reed Smith attorney to discuss a specific situation before implementing any action. We will continue to keep you informed of any major updates or changes in the law and the situation progresses.
Client Alert 2020-187
