As the coronavirus pandemic continues to spread across the United States, business owners and HR professionals not subject to a “shutdown order” should brace themselves to field the following call:
“Mike from accounting just texted me. He’s not coming in today because he’s tested positive for coronavirus. What do we do?”
A calm, deliberate, and swift response is imperative in order to protect other employees from contracting the virus and ensure that any measures taken do not run afoul of the Americans with Disabilities Act (“ADA”). This alert lays out several critical recommendations – including recent guidance from the Equal Employment Opportunity Commission (“EEOC”) – that companies should consider in the event that one of their employees tests positive for coronavirus. Please note, however, that all situations are different, and we recommend that any action plan be formed in consultation with counsel.
Preliminary Consideration: “Tone at the Top”
Do not panic. It is critical that employees and management perceive that company leadership has planned for this eventuality and is responding in a composed and speedy manner that complies with the ADA. Conversations with employees should instill confidence but also demonstrate empathy for workers who will undoubtedly be fearful, not only for their health but also their continued employment. Whenever possible, leadership should remind employees that it understands their concerns and is taking action to keep employees safe. Additionally, employees should not perceive that leadership has “holed up” and left the workers to fend for themselves. Leadership’s communication and physical presence – following proper “social distancing” protocols, of course – is key.
Identify Close Contacts and Quarantine
As with employees who demonstrate flu-like symptoms, any employee who tests positive for coronavirus should be sent home (or told to stay home) immediately. The EEOC notes that “[t]he CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.” Employers should be careful, however, not to ask for too much information from employees who call in sick, with the EEOC counseling that employers should only ask such employees if they are experiencing symptoms of the pandemic virus such as fever, chills, cough, shortness of breath, or sore throat. These limitations do not prevent an employee from voluntarily sharing with their employer that they have tested positive the coronavirus.
To help fight the potential spread in the workplace, any colleagues that came into recent close contact with an employee testing positive for coronavirus should be sent home for fourteen days. The CDC defines “close contact” as “being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a healthcare waiting area or room with a COVID-19 case.”
If you have a line of communication with the employee who tested positive, ask them to provide a comprehensive list of any individuals with whom they came into such close contact in the last fourteen days. That list should be supplemented in consultation with management to ensure that any employees who may have been exposed can be sent home. Err on the side of over-inclusiveness. Please note, that when formulating the list of individuals who may have had close contact with the employee who tested positive, that employee’s name should not be shared with non-management employees, as doing so may violate confidentiality laws. Accordingly, some detective work by management may be required to ensure that the company has properly identified employees who would have had close contact. Lastly, determine whether the employee came into close contact with any visitors or vendors in the workplace, and strongly consider alerting those individuals that they may have been exposed to the virus, again, remembering not to share the name of the employee with coronavirus.
Employees on the “close contact” list should be sent home (or told to stay home) for a mandatory fourteen day period to ensure that the infection does not spread. If possible, the conversation regarding this quarantine should be had in a private place with two members from management or human resources present (following social distancing protocols, of course). If the individual is already at home, a telephone call is appropriate. As noted above, the tone from management should be calm and sympathetic, recognizing the stress that the conversation may place on the employee. Following a conversation in the workplace, the employee should leave the employer’s premises immediately and discreetly. They should not share why they are leaving with colleagues. This fact should be impressed upon them so as to avoid any panic in the workplace. In the event that the employee needs to retrieve any personal effects from their work space, they should do so themselves.
When placing employees on mandatory quarantine, employers should be mindful of complying with the provisions of the new Families First Coronavirus Response Act (“FFCRA”) and whether the employee is entitled to paid leave. If an employee’s mandatory quarantine does not qualify for paid leave under the FFCRA, the company must decide whether the employees will be provided with paid leave or whether they may (or must) use accrued PTO during the quarantine. For employees with no accrued PTO, employers can – at their discretion – allow them to take a negative balance if they elect to make the leave unpaid. Additionally, as discussed in more detail below, the employer must decide whether to allow the employee to telework (if feasible).
Alert the Workforce of the Exposure
Immediately after all employees who had close contact with the infected individual have been sent home, the company should inform the entire workplace about the exposure. The message should be promulgated by whatever means necessary to ensure that all employees receive it. This could, for example, require not only emailing, but also posting the message in conspicuous locations and/or handing it directly to employees. For employers with a multilingual workforce, consider providing a translated version of the message.
The message should be styled as a letter from the head of the company (or human resources) because a more formal “warning” or “notice” may heighten workers’ alarm. The opening sentence of the communication should clearly state that an employee at the work site has been diagnosed with the coronavirus and is currently receiving medical treatment. In order to avoid running afoul of the ADA or other privacy laws, the employee’s name must be kept confidential. If your business is divided into departments, consider stating the department in which the employee worked so as to allay fear and panic among other employees who do not work in that department. However, if a department only has a small handful of employees, listing it may be tantamount to outing the employee and is inadvisable.
In addition to alerting the workplace to the exposure, the message should state that all employees who had close contact with the individual who tested positive have been sent home for a quarantine period. The message should also encourage “social distancing,” encourage employees to practice hygienic behavior, and encourage employees with flu-like symptoms to stay home. Employees should also be informed about the potential for paid leave under the FFCRA and whether they will have the option to use any accrued PTO if they take sick leave for flu-like symptoms. Consider closing the message with a personal note stating the confidence that management has in employees to respond professionally and collegially to the situation.
As soon as the company learns that an employee has tested positive for coronavirus, someone should be tasked with ensuring that the work and rest areas of the infected individual (or the entire workplace if feasible) are sanitized thoroughly. Immediately following an exposure, the CDC recommends closing off areas used by the ill person, waiting twenty-four hours or as long as possible before beginning to clean and disinfect, and opening doors and windows to improve air circulation. If your company already uses regular janitorial services (whether in-house or a third party), strongly consider using a different company that specializes in such jobs. Although not a requirement, using a new company will signal to employees that the company takes the matter seriously. On top of this deep clean, consider ramping up your normal cleaning schedule to include more frequent cleans and more expansive areas.
Gear Up and/or Pack Up
Employees in the workplace may be nervous to return to work following an announcement that one of their colleagues has coronavirus. In response to these fears, commit to providing employees with hand sanitizer and soap for use in the workplace. Note that the EEOC has commented that an employer may require its employees to adopt infection control practices, such as regular hand washing, in the workplace. Additionally, employers can require employees to wear personal protective equipment like masks and gloves.
If feasible, employers should also consider allowing employees to work from home. In this regard, the EEOC has commented that “[t]elework is an effective infection-control strategy…” We recommend evaluating remote work capacities and policies and encouraging teleconference or the use of other remote work tools in lieu of meeting in person if available. If teleworking is not possible, consider staggering employee work times, along with lunch and break periods, to minimize overcrowding in common areas such as elevators, break rooms, etc.
Active Encouragement of Social Distancing and Proper Hygiene
As stated above, the company’s initial message to the workplace should recommend “social distancing” as well as hygienic behavior. But the message is only the beginning, and a company’s commitment to preventing the spread of coronavirus in the workplace extends to actively encouraging its employees to do so. Management should have frequent dialogues with employees regarding proper methods of “social distancing” (e.g., stay six feet away if you can, don’t shake hands, etc.) and hygiene (e.g., don’t touch your face, wash your hands, use hand sanitizer, etc.). Not only that, but management should be prepared to counsel employees who are engaging in behavior that is blatantly contrary to these goals.
Consider Taking Employees’ Temperatures
Given the World Health Organization’s characterization of the coronavirus outbreak as a “pandemic,” the EEOC has advised that “employers may measure employees’ body temperature” to determine whether they have a fever – a symptom of the coronavirus. Employers who elect to utilize temperature testing in the workplace should take all necessary precautions to ensure that employees administering the tests are adequately protected. Please consult OSHA guidelines, which include, among other things, recommendations on gowns, gloves, approved N95 respirators, and eye/face protection.
Although temperature checks may aid employers in identifying symptomatic employees, the EEOC warns that “employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever.” Accordingly, temperature testing is not a foolproof method for preventing the spread of coronavirus in the workplace.
After adopting a response plan, employers should resist the urge to become complacent. The company should remain diligent, maintaining open lines of communication with staff (including quarantined employees) in order to assess whether other employees are becoming sick. In the event that you believe one of your workers has coronavirus, take the same steps discussed above and treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees.
Return to Work Certifications
According to the EEOC, employers can require a doctor’s note certifying fitness for duty for employees returning to work after recovering from the coronavirus or being mandatorily quarantined. The EEOC states, however, that as a practical matter, “doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation” and advises that “new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”
As noted above, all situations are different, and there are a host of circumstances that may require modification of the action items discussed above. If you have any questions about formulating a response plan or any other of the many rapid developments related to the coronavirus pandemic, please contact a member of the Employment Law Team at AGG.