Six Steps to Take if an Employee Tests Positive for COVID-19 (Coronavirus and the Law)

Last updated May 7, 2020.

[clear]Maintaining a safe workplace while keeping workplace anxiety to a minimum is a real challenge right now, made worse by the abundance of rumors, myths, and urban legends circulating through social media. When you add uncertainty and fear to hundreds of pages of new legislation and regulation, you get the perfect HR storm.

The legal developments around the COVID-19 pandemic can be found on our COVID-19 Resource page. This alert will focus on straightforward, practical recommendations on what to do when one of your employees informs you of a positive COVID-19 test. Your obligations and approach may differ depending on the circumstances, but these steps will help guide you.

Six Steps to Take After a COVID-19 Diagnosis in Your Workforce

1. Don’t go it alone!

The state departments of health (DOH), in coordination with the CDC, are leading the charge on monitoring and controlling the spread of COVID-19. Your local DOH representatives have more experience dealing with these issues than you. Take advantage of their knowledge and coordinate your response with them.

Don’t wait for a positive test. Familiarize yourself now with the best local contact for your DOH. Here is a link to the DOH for every state. Most of our pandemic experience has been with Virginia Department of Health (VDH), so we will use them as an example throughout these steps. Here is a directory of VDH district contacts. Their personnel are knowledgeable, cooperative, and responsive – and they care. Partner with the experts!

2. Re-educate yourself and your workforce.

Keep yourself informed about the latest developments, how the virus spreads and recommended safety precautions. VDH Director of Communicable Disease Control, Molly O’Dell, commented that the best advice “is to stay informed with the most up-to-date recommendations and share those, calmly, with employees on a weekly basis at least. Information and guidance are changing rapidly as we learn best practices from around the globe. Employees often have the best solutions for keeping workplaces safe.”

3. Conduct internal contact tracing.

The standard protocol for contact tracing starts with a VDH representative asking the employee who tested positive (also known as “the case patient”) to identify all persons with whom the employee was in close contact (within 6 feet for 10 minutes or more). The CDC indicates the relevant timeframe for having close contact with a case patient includes the 48 hours before the case patient became symptomatic. The VDH representative will then attempt to contact the exposed individuals and inform them of any quarantine or isolation protocols.

View the VDH’s April 9, 2020 protocol for quarantine and isolation (pdf).

View the VDH's Daily Monitoring Log for those exposed to COVID-19 (pdf).

Even with a VDH representative taking the lead, it is important to consider the actions you should take quickly. The VDH approach should form the basis for your approach. You need to determine: (1) workplace close contacts (including third-parties); and (2) where the employee has been. Contact tracing may involve speaking with the other employees’ supervisors or reviewing access logs or security footage. Any employees the case patient had close contact with over the last few days should be sent home for 14 days. Contact these employees daily to ask about their well-being and whether they have experienced symptoms.

View the CDC's resource page for Contact Tracing.

Always keep your VDH contact involved in your processes and recommendations. The VDH will be involved with the case patient and any high-risk contacts and may provide them with directions not to attend work or to quarantine for some period of time.

4. Maintain confidentiality.

You are dealing with an employee’s sensitive health information. This information should be treated just like other personal protected information. Other employees may beg or demand to know who tested positive, but you cannot and should not reveal the medical information or diagnoses of your employees during this pandemic.

Instead, notify employees of your confidentiality obligations but ensure them of the steps your company is taking to address any possible exposure in the workplace. When notifying possible “close-contact” employees that they need to go home, use phrases like, “it is possible you may have been exposed in your workspace, so out of an abundance of caution we need you to remain home for the next 14 days or until further notice.”

5. Deep clean.

Not only are you working to identify close contacts, but also where the case patient went. If the case patient drove a company truck, ate lunch in the break room, or used a communal meeting room, these places should be closed off and deep cleaned. In some cases you may find it necessary to close off access points for 72 hours or more (the time frame the CDC indicated the virus can live without a host). This is key with or without positive test results. We are seeing OSHA complaints about employers allegedly not following OSHA or CDC-recommended workplace cleaning guidelines.

6. Communicate with your workforce.

With a positive case, there is likely to be reactions fueled by fear, anxiety, and misunderstanding. Ensure your team that you are working closely with VDH to provide your employees as much accurate information as possible. Always remind employees of the steps they can take such as hand washing, staying home if they feel sick, and maintaining social distance. You may want to implement pre-shift temperature measures.

Final Thoughts

We strongly suggest coordinating with your local DOH representative. Lean on their knowledge and experience. Arm yourself with knowledge and impart that to your workforce. Do not allow employees to mistreat, harass, or discriminate against others out of blind ignorance. Also, be calm and show empathy. Dealing with an infectious disease is scary and anxiety-inducing.

Finally, it is natural to focus on the new laws passed in the wake of this pandemic, but keep in mind that all of the other laws still apply! The ADA, FMLA, OSHA, etc. remain highly relevant during this pandemic and afterward.

If you have concerns or questions, contact an attorney on the Woods Rogers Labor & Employment team. Stay safe and be well!

Read more legal updates on COVID-19 from Woods Rogers attorneys.