Employee to be quarantined for 10-14 days if tests positive
With the number of COVID-19 cases growing in Monongalia County, as well around the nation as a whole, it begs the question:
What do employers do when one of their workers tests positive for the virus?
Employers have two options for letting employees know that a co-worker has tested positive, said West Virginia University law professor Anne Marie Lofaso, a labor and employment law expert.
The employer can ask the COVID-19-positive employee for permission to share that with co-workers. Or, they can simply tell employees that someone related to the business has tested positive, she said.
“If an employee tests positive, that employee’s co-workers should be tested immediately and quarantine for 10 to 14 days,” Lofaso said.
As of Friday, there were nearly 4,000 active cases of COVID-19 in West Virginia and 95 deaths, including five in Monongalia County. By comparison, the state had 520 cases on July 2, and the country as a whole surpassed 3 million COVID-19 cases earlier this month.
Two associates at the Kroger store at Suncrest Towne Centre recently tested positive for the virus and are recovering at home, said Allison McGee, corporate affairs manager for Kroger Mid-Atlantic.
“When we learn about a positive diagnosis, the store undergoes an extensive deep cleaning and sanitation from a third-party vendor,” McGee said.
“Kroger is taking many additional measures to protect associates, customers and the community, including limiting capacity in stores and administering associate temperature checks,” she said. “Kroger has also installed partitions at cash registers and counters and added floor decals to further promote physical distancing.”
Laws are still murky
Because of health privacy laws, such as the Americans with Disabilities Act — ADA — employers can tell the workforce that someone is positive for the virus, but cannot identify the individual without the employee’s permission.
“I would recommend that employers inform their other employees of the possible exposure to someone who has tested positive,” said attorney Brock Malcolm, head of the Bowles Rice Health Care Practice Group, in an email to the Dominion Post.
“This notice may not need to go to every employee in the business, but an employer will want to consider the risks of exposure through common areas, such as break rooms,” he said. “These other employees should be advised to monitor themselves for symptoms of COVID-19. The presence of one or more infected employees does not require an employer to close its business or to send its employees home. It is up to the employer to determine the extent of the exposure and to take reasonable steps, including cleaning potentially infected areas, to minimize the risk of exposure to other employees.”
When a person tests positive for the virus in Monongalia County, the county health department is notified. An investigator from the county will then contact that person, as well as people he may have been in close contact with. If that person has not been to work for 48 hours — the time he is considered contagious — the employer won’t be notified. If a person did work during that time, then the employer would be notified, said Mary Wade Burnside, MCHD’s public information officer.
“Depending on the type of work, we may need to talk to the workplace as part of the case investigation to find out when the employee worked, what the person did and who the person would have been around,” she said. “For privacy reasons we just don’t talk to everybody’s employer when they have a disease.”
West Virginia does not yet have a law requiring a mandatory quarantine for someone with a confirmed case or for a person who has been in close contact with a COVID-19 patient, or any official regulations that say when a person can return to work.
Other states, however, do. New York, for example, allows people who have completed 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic to return to work.
“Let’s say you’re not obligated by state law and someone gets sick and dies,” Lofaso said. “Or, someone gives it to someone who dies. An employer is taking a big risk.
“It would be easier for us to be protected when the state decided to act affirmatively,” she said.
Safe workplace and worker rights
Under COVID-19 guidelines from the federal Occupational Safety and Health Administration, employees are entitled to a safe work area. OSHA said employers should provide soap, water and paper towels for frequent hand washings, or hand sanitizer. Other OSHA guidelines include:
- Identifying high traffic areas and target them for frequent cleaning.
- Mark floors in six-foot zones for social distancing. Also post signs reminding people to social distance.
- Ask employees to evaluate themselves for signs of COVID-19 before coming to work.
- Establish a protocol for managing people who get the virus.
- Make sure an employee who has been exposed to someone with COVID-19 routinely monitor themselves for symptoms.
- Encourage the use of face coverings in the workplace.
OSHA said employers are not prohibited from screening employees for the virus if applied in a transparent manner applicable to all employees. This can include daily health checks, such as temperature screens.
“Generally speaking, employees have the right to work in a safe workplace,” Malcolm said. “This right is provided under the Occupational Safety and Health Act, which requires employers to take reasonable steps to protect employees from recognized hazards that may cause serious injury or death.”
COVID in the courtroom
In the coming years, Malcolm said he expects to see COVID-19 litigation become commonplace. People who get sick will blame it on their workplace, he said.
“I spend a lot of my time working with employers to adjust to the changing circumstances and newly developed regulations, all in the effort of protecting employees and customers of the businesses I represent,” he said. “These efforts are geared toward trying to prevent lawsuits by minimizing exposures within those businesses.”
The difficulty with those cases will be establishing where the individual was exposed. Also, the individual will have to establish that the defendant in any lawsuit has breached some duty to them, Malcolm said.
“In this environment, where everyone knows we are in the midst of a pandemic, and where businesses are generally doing all they can (short of closing) to protect their workers and the public, I believe it will be very difficult to prove any one business was the cause of the individual’s exposure, especially as more businesses open and the general public may become less diligent about maintaining social distancing guidelines.”