CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw recently discussed what employers should do if an employee tests positive with COVID-19.

Shaw tells Frank that while there is a lot of guidance available, there are only a few steps employers need to take should an employee test positive for COVID-19:

Step 1: Send the Employee Home

The first thing an employer needs to do is to send the sick employee home right away.

Even if a business is deemed an “essential business,” any employee who is sick needs to stay home, Shaw says.

An employee who is sick and who tests positive for COVID-19 should stay home for 10 days after the symptoms first appeared and for 72 hours after their recovery (once symptoms are gone without having to use medication).

Employees exposed to COVID-19, but not showing symptoms should quarantine for 14 days, which is the incubation period of the virus.

This guidance, Shaw explains, was released by the California Department of Public Health (CDPH) on June 16 in conjunction with the California Division of Occupational Safety and Health (Cal/OSHA), so employers who follow these recommendations are meeting all safety obligations, as they stand today.

Step 2: Find ‘Close Contacts’

The second step employers should take is asking the sickened employee to think about where he has been in the previous two weeks and identify any coworkers who he has had close contact with.

“Close contact,” Shaw explains, is defined as having been within six feet of an infected person for 15 or more continuous minutes—even if all parties were wearing masks.

Businesses that have incorporated preventative measures, such as putting down decals six feet apart or limiting face-to-face work interactions, may find that the number of exposed employees will be limited should an employee become ill.

“This is why those preventative techniques, that a lot of people sort of frowned on,…is critical,” Shaw stresses.

Quarantine:

If someone is determined to have been in “close contact” with an infected employee, that person also needs to be sent home, but, in their case, for the incubation period of 14 days.

If the quarantined employee develops COVID-19 symptoms, then she will need to stay home for 10 days after her symptoms first appeared and for 72 hours after being symptom-free.

Privacy Concerns:

When an employer is talking to employees about their exposure, Frank asks, can the employer reveal the name of the employee who tested positive for COVID-19?

No, Shaw responds. Due to a number of confidentiality laws, all an employer may state is “We think you may have been exposed to somebody. You’re going to have to be quarantined,” she says.

Pay:

Employers are legally bound to pay for the day an employee was sent home (reporting time pay obligation), Shaw tells Frank. Nonexempt employees may use vacation or sick time, if available, to cover their wages during their quarantine or sick period. In some cases, workers may be able to obtain compensation through the Families First Coronavirus Response Act.

If an exempt employee is sent home, Shaw explains, then the employee should be told not to work from home. Or, an employer can keep paying an exempt employee if she wishes to work from home.

If the business can afford to do so, however, Shaw recommends that employers continue to pay a sick or quarantined employee’s wages to encourage employees to report symptoms and get tested for the coronavirus. Fear of losing wages may discourage employees from calling out sick when they are ill.

Step 3: Notify Health Department

Lastly, should an employee test positive for COVID-19, the employer will need to contact their local health department.

If an employee is hospitalized for at least 24 hours, the employer will have to record the information on the Cal/OSHA Form 300, Log of Work-Related Injuries and Illnesses, Shaw says.

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