This article was updated to answer several common COVID-19 related questions from employers.
What if an employee tests positive for COVID-19 (or presumptive positive), or claims to have been in contact with someone who tested positive for COVID-19?
Employees who test positive for COVID-19 should be excused from work immediately and should self-quarantine. They should contact their healthcare provider as soon as possible.
In addition, employers should contact their local health department to determine if the case needs to be reported and should take all necessary measures to clean and sanitize the workplace to make any contact areas safe.
Medical and health information of employees must remain confidential, and employers should notify other co-workers who may have been in contact with the individual that possible exposure has occurred without providing any identifying information about the employee who tested positive.
Presumptive positive cases (where the individual exhibits symptoms of COVID-19, but has not received a negative test result to clear them), and cases where an employee discloses that they have been in close contact with a person who tested positive, should be treated the same as if they have tested positive. Therefore, they may be excused from work and asked to self-quarantine. Employers are permitted to require that an employee who has been exposed to the virus self-quarantine. Similarly, employees returning from countries that have a Level 3 Travel Health Notice from the Center for Disease Control (CDC) should also self-quarantine upon their return to the United States. (Travel advisories are changing. Monitor the latest guidance from the CDC and the WHO).
My business has remained open, but I have employees who are refusing to report to work. What can I do?
Under OSHA rules, employees are only entitled to refuse to work if they believe they are in "imminent danger." OSHA defines this as "conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Therefore, an employee must believe that death or serious physical harm could occur within a short time frame for the threat to be considered immediate or imminent. For example, a workplace where employees may regularly be exposed to COVID-19 may rise to this threshold, but absent that, most work conditions in the U.S. likely do not. Nevertheless, employers should discuss all facts and circumstances on a case-by-case basis with their HR Consultant when confronted with these issues.
On the other hand, situations where an employee is requesting a leave or other accommodation (such as the ability to work from home) because they have a disability which puts them at an increased risk if they contracted the virus, they may be entitled to stay out of the workplace as a reasonable accommodation under the Americans with Disabilities Act (ADA).
Can I check employee temperatures when they report to work?
Because of the unique circumstances after a state or local health authority deems a public health concern to be a “pandemic,” the EEOC has issued guidance that employers are permitted to take workers’ temperatures. At all other times, this practice remains prohibited as discriminatory and a violation of privacy. Employers considering implementing a temperature check are encouraged to first discuss this practice in more detail with their HR Consultant.
Before, during and after the COVID-19 pandemic, employers much keep the safety and health of their employees top of mind.