MSADA
LEGAL By Joseph W. Ambash and Jeffrey A. Fritz
What if an Employee Tests Positive for COVID-19, Has Symptoms, or Is Exposed to Someone Who Does? Now that big chunks of the local economy are up and moving again (for how long and to what extent, of course, remain to be seen), we have been fielding lots of questions about what employers must, can, or should do if and when an employee tests positive for COVID-19, is exhibiting symptoms, or has been exposed to someone who has tested positive or exhibiting symptoms. This article provides some general guidance. What are the Symptoms? As the CDC has explained, people with COVID-19 may have a wide range of symptoms, and their severity may vary greatly. These symptoms include fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or running nose, nausea or vomiting, and diarrhea. COVID-19 symptoms may appear between 2 and 14 days after exposure to the virus. What is an Exposure? In determining what counts as exposure to COVID-19, you should keep in mind three numbers: 6-15-48. If an individual was within 6 feet of someone who has tested positive or exhibited symptoms for 15 minutes or more, within the 48 hours prior to the individual testing positive or exhibiting symptoms, s/he generally is considered to have been “exposed” to COVID-19. What if an Employee Tests Positive? When an employee tests positive for COVD-19, there are four general steps you need to make sure you follow. First, you should isolate/quarantine the employee who tested positive. And s/he should remain at home until released by a doctor. Second, you should address and isolate employees working near the infected employee. In other words, you should conduct a 6-15-48 review, identify those employees who worked within 6 feet of the infected employee for 15 minutes or more within the 48 hours prior to the test or exhibition of symptoms, and then determine whether they need to be quarantined as well (see
below). Third, you should clean and disinfect your workplace, consistent with CDC guidelines, including all areas and facilities the infected person used, focusing especially on frequently-touched surfaces. Finally, you should notify all employees working in the location or area that an employee tested positive (without revealing the infected person’s name or any confidential medical information) and describe all actions you have taken as a result. Keep in mind that employees who are required to quarantine may be eligible for emergency paid sick leave under the Families First Coronavirus Response Act. You should inform them of this potential entitlement. What if an Employee is Exposed? If an employee is determined to have been exposed to COVID-19 (such as in connection with a 6-15-48 review), whether s/he needs to be quarantined depends, in part, on whether s/he is a critical infrastructure worker (such as a technician). For example, no quarantine requirement exists for a critical infrastructure worker who was exposed to COVID-19 but who (1) exhibits no symptoms, and (2) either tested negative or never tested. Instead, all that is required, per CDC guidelines, is that the employee (1) wear a mask at work 100% of the time, (2) have his/her temperature tested before every shift, (2) stay at least 6 feet away from coworkers as much as possible, and (4) self-monitor for symptoms. The employer also must regularly clean and disinfect the workplace. (Of course, no prohibition exists on an employer requiring such an employee to quarantine nonetheless.) For employees who, like most of your staff, are not critical infrastructure employees, if they are exposed to COVID-19, they should quarantine for 14 days, and return only if exhibiting no symptoms. This quarantine period should not be cut short even if the employee tests negative in the interim. What if an Employee is Exhibiting Symptoms? If an employee is exposed www.msada.org
and exhibiting symptoms, the employee should be quarantined for a minimum of 14 days (regardless of whether the employee is a critical infrastructure employee) and only return when at least 24 hours have passed since s/he had a fever and all other symptoms have improved. You can require the employee to be tested and/or cleared by a doctor before returning. If the employee’s symptoms are severe, the length of isolation should be determined by their his/her care provider. Does this mean that any runny nose, for example, requires a 14-day quarantine? Well, no. If an employee, for example, was not exposed to COVID-19, the analysis should be decided on a case-bycase basis, and the specific facts presented, with reason being your guide. You should consult competent counsel to help you navigate this determination. While not 100% determinative, you can require an employee with no exposure who is exhibiting mild to moderate symptoms to return to work only with a negative test and/or on release by his or her doctor. In the end, and in the interest of risk mitigation, you should err on the side of caution, and only allow employees to work consistent with CDC guidelines. Too cavalier an approach can result in unnecessary spread amongst your workforce. t
Joe Ambash is the Managing Partner and Jeff Fritz is a partner at Fisher Phillips, LLP, a national labor and employment firm representing hundreds of dealerships in Massachusetts and nationally. They can be reached at (617) 722-0044.
Massachusetts Auto Dealer
AUGUST 2020
25
