Reed Smith Client Alerts

The COVID-19 pandemic has created a “brave new world” of sorts for U.S. employers.  One particularly acute challenge created by the pandemic is navigating the appropriate workplace response when an employee is diagnosed with the virus.  The impact of such a diagnosis is felt not only by the infected employee him/herself but also, potentially, by colleagues, customers, vendors, and other third parties.

Below we provide detailed, step-by-step measures that employers – particularly those that continue to maintain some level of “in-person” operations – may take when they find out an employee has been diagnosed with COVID-19.  Note that this guidance is current as of April 2nd 2020.

作者: Bradley S. Schmarak Mark S. Goldstein Amy I. Harwath

employee talking in meeting

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.