What To Do If An Employee Tests Positive For COVID-19

On March 19, 2020, California Governor Newsom issued Executive Order N-33-20, which places certain restrictions on Californians in response to the COVID-19 pandemic.  Pursuant to the Executive Order, Californians are ordered to stay home, except as needed to maintain continuity of operation of specified essential services, including, hospitals and medical providers, gas stations, pharmacies, grocery stores, take-out and delivery restaurants, banks, laundromats and other critical government services. More information is available here.

If your business is considered an essential service, you are permitted to have your employees report to work.  However, what happens if or when an employee becomes sick?  There are certain protocols that your business must have in place and be prepared to follow at the first notice that an employee is sick or has been exposed to COVID-19 to prevent further exposure, avoid workplace panic, and ensure that your business can remain open and operational.

1) What if an Employee Exhibits COVID-19 Symptoms?

If an employee exhibits COVID-19 symptoms while at work (e.g. fever, dry cough, or shortness of breath), the employee must be sent home immediately and directed to contact their healthcare provider.  If the employee does not receive testing for COVD-19, pursuant to the guidelines recommended by the CDC, you should direct the employee to remain at home for at least 14 days from the date the symptoms first manifested and until he or she is symptom free for seven days without the use of fever-reducing or other symptom-altering medicines and in consultation with healthcare providers and state and local health departments. To the extent practical, it would be prudent to require the employee to obtain a doctor’s note clearing them to return to work before allowing them to return.

2) What if an Employee an Positive for COVID-19?

If an employee advises you that they have tested positive for COVID-19, that employee must be directed to self-quarantine away from work for a period of no less than 14 days. Employees who test positive and are directed to care for themselves at home may return to work when: (1) at least seven days have passed since recovery and (2) at least 14 days have passed since symptoms first appeared.  To the extent possible, businesses should consult with healthcare providers and state and local health departments before allowing an employee who had previously tested positive to return to work.  In addition, it would be prudent to require the employee to obtain a doctor’s note clearing them to return to work before allowing them to return.

If you learn that an employee has tested positive for COVID-19, you will need to conduct an investigation to determine co-workers or other employees or customers who may have had close contact with the confirmed positive employee in the prior 14 days and direct those individuals who have had close contact with the confirmed-positive worker to self-quarantine for 14 days from the last date of close contact with that worker. Close contact is defined as six feet for prolonged period of time (longer than 20 minutes).  While you have a duty to inform other employees that they might have been exposed to the disease so they may take measures to protect their own health, you also have a duty to maintain the privacy of the positive employee.  As a result, to the extent possible you must not disclose the employee’s name or anything else about their medical condition other than the fact that they tested positive for the virus.  Lastly, the number of persons who should be informed that an unnamed employee has tested positive should be kept to the minimum needed to comply with reporting requirements to limit the potential for transmission to others and to avoid workplace panic.

3) What if an Employee has Close Contact with an Individual Who Has Tested Positive for COVID-19?

If you learn that an employee has come into close contact with an individual who has tested positive for COVID-19 (co-worker, family member, or otherwise) you must direct that employee to self-quarantine for 14 days from the last date of close contact with that individual.

For more information, contact partner Katie Brach in LGC’s San Diego office.