Insights

Question: What should an employer do if an employee is exposed to COVID-19 while working or traveling for work?

Answer:

1. If an employee is exposed to COVID-19 while working or traveling for work (or has recently traveled to or from a highly affected area*) (or develops mild symptoms**), but does not have symptoms that presumptively point to COVID-19 or a positive test, ask the employee to voluntarily stay away from work either pending a test or for a 14-day quarantine period, and advise them to seek medical attention if they experience known symptoms of COVID-19 (fever and cough).  If the employee can work from home, that would be ideal.  If not, Paid Time Off (PTO), or other paid or unpaid leave policies could be used.  Short Term Disability insurance and the Americans with Disabilities Act (ADA) would not apply because the employee is not disabled, and the Family Medical Leave Act (FMLA) would not apply unless the employee is eligible and is determined to have a “serious health condition.”  Hopefully, the employee will voluntarily comply.  Requiring that a potentially exposed but not sick employee stay away from work, especially if it is not possible for that employee to work from home, risks potential violations of the ADA and other labor laws.  The risk can be mitigated to some extent, however, by equipping employees to work from home if that is possible and/or by requiring entire business units (including, but not limited to, the potentially exposed employee) to furlough or work from home.  (*See our Coming Here and Going There Alert.) (**New MLG Alert on this topic will be posted soon.)
2. An employee with a positive test for COVID-19 (or symptoms that presumptively point to COVID-19***) should be required to stay out of work for the duration of symptoms and any quarantine imposed by the government or recommended by their healthcare provider (typically 14 days from onset of symptoms).  FMLA and/or ADA may apply, depending on whether the employer is covered and the employee’s eligibility, whether the condition is a “serious health condition” as defined by the FMLA, and whether the condition renders the employee temporarily disabled as defined by the ADA.  Short Term Disability insurance coverage may be available for wage replacement in some cases.  An employee should be allowed to use any applicable PTO available under Company policies.   (***New MLG Alert on this topic will be posted soon.)
3. If an employee with a positive test for COVID-19 (or symptoms that presumptively point to COVID-19***) has been in contact with other employees or the employer’s office or facility since exposure to COVID-19, the employer has a duty to take actions to remove the hazard from the workplace.  It is unclear whether an employer has such a duty in the case of an employee who has been exposed, but has no presumptive symptoms, and has not tested positive for the virus, but the employer still should do so in an abundance of caution.  Such actions include removing the affected employee from the workplace (as noted above), and cleaning and disinfecting all affected work areas.  In some circumstances it may be appropriate to close a facility for cleaning and disinfecting.
4. The employer also has a duty to inform other employees of the risk of exposure in the case of an employee with a positive test for COVID-19 (or symptoms that presumptively point to COVID-19***) who has been in contact with other employees or the employer’s office or facility since exposure.  It is unclear whether an employer has such a duty in the case of an employee who has been exposed (or develops mild symptoms**), but has no symptoms that presumptively point to COVID-19 or positive test results, but the employer still should do so in an abundance of caution.  The employer should refrain from disclosing the affected employee’s identity (because of FMLA and ADA requirements regarding confidentiality of employee health information).  In many cases, this will be difficult to do while providing sufficient information to allow other employees to understand their risk of exposure.  Nevertheless, although Health Insurance Portability and Accountability Act (HIPAA) privacy rules have carve outs for disclosing Personal Health Information (PHI) “when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes,” the FMLA and ADA have no such exceptions.  Of course, employers may disclose information to public health authorities, and may disclose the identity of the affected employee to other employees with the affected employee’s consent.  Therefore, the best first step to disclosure is to seek the consent of the employee whose health information will be disclosed.
5. The Occupational Safety and Health Administration (OSHA) has deemed COVID-19 a recordable illness if an employee is infected while on the job. Therefore, if an employee contracts COVID-19 while working or traveling for work, an employer is required to record the illness according to OSHA requirements.  State-plan states may have additional requirements.
6. In some jurisdictions and for some workers, worker’s compensation insurance may cover COVID-19 infection while working.  In North Carolina, coverage is only available if contracting COVID-19 is considered an “injury by accident” and/or an “occupational disease.”  Those definitions will likely only be met by a small sub-set of workers, such as healthcare providers or first responders, and possibly a few other categories of workers where exposure to the virus was “peculiar” to the employee’s work and no alternative means of exposure is demonstrated.

Because the COVID-19 pandemic is a fluid situation, and because risks can be presented in a myriad of ways, it is important to analyze each situation on a case-by-case basis, to determine the appropriate course of action.

If you need help with your planning or working through scenarios that present themselves in your workplace, we are here to help.  Please contact Morningstar Law Group Partner, Amie Flowers Carmack, for assistance:  acarmack@morningstarlawgroup.com or 919.590.0394.