My Employee Tested Positive for COVID-19. Now What? (Part II)

For starters, we’ve all come to the (unfortunate) realization that COVID-19 is here to stay until we have a readily available vaccine—optimistically by this Fall or (pessimistically) in 2021. Another piece of the puzzle is that, as the pandemic continues, it seems like the “guidelines” from the Centers for Disease Control (CDC) are constantly changing. The “guidelines” in March are not necessarily what the “guidelines” were in April, May, June, or July.

It’s now the end of August, and it’s been approximately one month since the latest rule change by the CDC. Employees are still testing positive for COVID-19, and Employers are now asking themselves: “Wait—what is it that we are now supposed to do?” Further adding to everyone’s confusion is the fact that navigating the CDC’s website is cumbersome and tedious, to say the least.

So what should you do (at least for now) if you find yourself in the inevitable situation where one of your Employees tests positive for COVID-19? Depending on your particular industry, e.g. health care workers, different rules may apply. Generally speaking, however, Employers should be, at a minimum, asking themselves the following questions when an Employee tests positive for COVID-19:

1. Was the Employee in the office within the last 7 days? If so, clean the office per CDC guidelines.
2. Was the Employee in “close contact” (within 6 feet for 15 minutes or longer) with anyone in the past 48 hours? If so, those individuals need to stay home and quarantine for 14 days (starting from the last day they were in close contact with the Employee who tested positive) before returning to the office (subject to Question 4 below). For everyone else, they should continue to wear a mask, practice social distancing, and monitor symptoms. Obviously, if an Employee starts to feel ill, they should stay at home and not return to the office until the requirements in Question 4 are satisfied.
3. Can my Employee return to work earlier if they get a COVID-19 test, and they test negative? Not necessarily. The CDC has gradually strayed away from relying on negative test results as a basis for allowing Employees to return to work. Only certain types of tests are considered reliable, and the timing of the test can lead to a false negative. The Employee’s health care provider will need to weigh in on when the Employee can return to work based on test results.
4. What if one of the quarantined Employees starts to have symptoms during the 14 day quarantine period? They can return to the office once: (i) 10 days have passed since the onset of symptoms; (ii) at least 24 hours have passed without any fever and without the use of fever-reducing medications, e.g., Tylenol or Advil; and (iii) other non-fever symptoms of COVID-19 have improved.
5. What if the Employee tested positive but has no symptoms? If they never develop symptoms, the Employee can return to work after 10 days have passed since he/she tested positive. If the Employee becomes symptomatic, then they should not return to work until the requirements in Question 4 are satisfied.

There are other considerations that need to be factored in to your decision-making process, and no 2 situations are alike. Additional questions and/or different rules and guidance may apply to your particular industry or jurisdiction. And, of course, the rules keep on changing. Therefore, it is best to consult with experienced employment counsel for purposes of vetting any contemplated action, as well as to consider how best to approach your particular situation.