Advice for Employers When an Employee Tests Positive for COVID-19 and for Helping Protect the Workforce

Below are points to remember if you have an employee who tests positive or has been personally ordered to quarantine, as well as advice about protecting your workforce.

If You Have an Employee Who Tests Positive/Has to Quarantine

  • The law prohibits disclosure of confidential employee information, including that an employee is getting tested for or tested positive for COVID-19. However, employers can and should disclose a possible exposure in the workplace, but the information disclosed should be tailored to disclose only information that is necessary to protect against spread of the virus.  Do not give personal employee identification or medical condition.  You can disclose to others who may have been exposed, the when and how (e.g., they worked on an assembly line on Wednesday and someone present has been told to self-isolate), but not the specifics (e.g., you worked with Chris on Wednesday and Chris tested positive).
  • The same concern for privacy applies to customers, clients, vendors and other third-parties.
  • Consult with your local health official as to what the response should be in terms of co-workers quarantining, cleaning, etc.
  • Remember to document exposure notifications and communications.
  • If the employee believes they contracted the virus at work, find out why they believe this and notify your workers’ compensation carrier.

Protecting Employees:  You Can Ask about Symptoms, Send Home Symptomatic Employees, or Take Temperatures

  • You may ask employees if they are experiencing COVID-19 symptoms, such as fever or chills and a cough or sore throat, but you must maintain as confidential information about an employee’s illness.
  • You but may ask employees about specific risks of exposure, but you cannot single out employees because of their race or national origin, or because of their association (such as marriage, co-habitation, friendships) with someone based on race or national origin. For instance you can say, “We are concerned that you have been exposed with someone that has symptoms,” but you cannot say, “We are concerned that you have been exposed because you live with someone of Chinese ancestry”.
  • If an employee exhibits symptoms of COVID-19 or any other communicable disease, you may ask the employee to leave work, but you will have to pay them in accordance with the sick leave laws. If they have exhausted their sick leave, they may be entitled to job protected, unpaid leave. See our posting regarding the new federal laws.
  • Generally, taking an employee’s temperature is considered a medical exam. However, the government is relaxing the requirements relating to taking temperature if the purpose is to help protect against the spread of COVID-19. See our posting regarding advice for taking employees’ temperature to help prevent the spread of COVID-19.

Protecting EmployeesDevelop Realistic Policies and Practices

If a business determines that it can operate in compliance with state and local orders, it should take reasonable steps to protect employees from the virus and develop an Infectious Disease Protocol.

Review Your Situation.  Employers should assess how the business is vulnerable to exposure to and/or spread of the virus. In developing an Infectious Disease Protocol, you should realistically consider how employees can perform job duties while maintaining social distancing and/or wearing protective gear, determine what kind of protective gear can be provided, consider different work flow or assignments in light of the protective gear and social distancing, allow telecommuting as much as possible, develop written guidelines, and provide training. Training may be as straightforward as a meeting (remember to maintain social distancing) or a memo informing employees of the company’s efforts and rules for protecting employees with some common sense pointers and reiterating what the CDC and state authorities have said.  Useful guidance may be found in U.S. OSHA’s “Guidance on Preparing Workplaces for COVID-19” and, for certain specified employers, CalOSHA’s Aerosol Transmissible Diseases standard.

Encourage Employees to Speak Up.  As with any other policy or procedure, employees should be encouraged to report suspected violations of safety rules and should be informed how to make such reports.

Check with Experts.  During this crisis, employers should rely on the latest public health recommendations from the Centers for Disease Control and Prevention (https://www.cdc.gov/) and their local and state health officials.  They should also check those websites regularly as guidelines and “best practices” have been evolving quickly in this pandemic.

“Protecting” Older Workers.  While authorities have said that older patients are more at risk if they contract the virus, employers cannot force older workers not to work or to stay home simply because of their age.

Following Safety Protocols/Protective Equipment.  If an employee refuses to properly wear/use protective equipment or to follow your Infectious Disease Protocol, the employee can be sent home or otherwise disciplined.