The Occupational Safety and Health Administration’s (“OSHA”) emergency temporary standard (“ETS”) regarding COVID-19 in the workplace, which we previously discussed, is presently blocked pending legal challenges. As a result, some employers may be left scratching their heads regarding how to respond when an employee tests positive for COVID-19. While employers should prepare themselves for the ETS being upheld, they may want to consider taking immediate steps, including implementing stricter policies than those contained in the ETS, to keep their workplaces as safe as possible.
According to the ETS, employers must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. Whether the ETS is upheld or not, removing a potentially infectious employee from the workplace will help protect other employees and business operations.
But what happens next and when should an employee be told when to return to work? According to the ETS, an employee cannot return to work until the earlier of the following:
The employee receives a negative result on a COVID-19 nucleic acid amplification test (“NAAT”) following a positive result on a COVID-19 antigen test if the employee chooses to take an NAAT test;
The employee meets the return-to-work criteria in the U.S. Centers for Disease Control and Prevention’s (“CDC”) isolation guidance; or
The employee receives a recommendation to return to work from a licensed health care provider.
Under the CDC’s isolation guidance, an asymptomatic person can be in the presence of other people after 10 days have passed since receiving a positive COVID-19 test. A symptomatic person can only be in the presence of other people after all the following conditions are met:
At least 10 days have passed since COVID-19 symptoms first appeared;
The person has had no fever for at least 24 hours without fever-reducing medication; and
Other symptoms of COVID-19 are improving.
The problem with the ETS’ return-to-work standard is that it allows for employees to return to work in situations where the employee does not meet the criteria of the CDC’s isolation guidance. That is because viruses like COVID-19 have an incubation period during which detection of the virus by available testing methods may not be possible. For example, a symptomatic employee may be diagnosed by their healthcare provider as having COVID-19 based on presenting symptoms of COVID-19. If the employee immediately takes a COVID-19 test which comes back negative, the employee could return to work under the ETS standard. However, the employee may simply not be shedding enough virus for available testing methods to detect the infection at that point, and upon their return to work, the employee may be at risk of infecting other people. Under the CDC’s isolation guidance, the employee could not return to work until 10 days have passed since the onset of COVID-19 symptoms, the employee is not experiencing fever, and their symptoms are improving.
Thus, as a best practice, employers should consider prohibiting an employee from returning to work until they have met the criteria set forth in the CDC’s isolation guidance, which arguably provides better protection from the spread of infection in the workplace.
Employers should also take the following responsive steps in the event that an employee tests positive for COVID-19, has COVID-19 symptoms, or was in close contact for 15 minutes over a 24-hour period with someone who has COVID-19:
Require the employee to quarantine for at least 10 days and remain off work until 24 hours have passed without a fever without medication, their symptoms, if any, have improved, and if they were symptomatic, at least 10 days have passed since their symptoms first appeared.
Inform the employee’s coworkers who were exposed to the employee that they may have been exposed to COVID-19 and recommend that they take a COVID-19 test.
If the employee is fully vaccinated, quarantine may not be necessary but COVID-19 testing, masking, and social distancing can be required.
Determine whether the employee any exposed coworkers are eligible for paid sick leave, workers’ compensation benefits, or other paid time off.
In California, employers must also track COVID-19 cases in the workplace and do, among other things, the following:
If there were 3 or more cases in a 14 day period, provide weekly testing to all employees and provide notice to the local health department.
If there were 20 or more cases in a 30 day period, offer free testing twice a week to all employees who were potentially exposed to an employee who either had or was themselves exposed to COVID-19.
The California Division of Occupational Safety and Health (“Cal/OSHA”) emergency temporary standards also requires most employers to develop a written COVID-19 prevention plan that includes a system for:
Communicating with employees about COVID-19
Identifying and evaluating COVID-19 hazards
Investigating and responding to COVID-19 cases in the workplace
Correcting COVID-19 hazards
Training and instructing employees on COVID-19 related issues
Implementing mechanisms for the use of face coverings and social distancing
Implementing mechanisms for the use of other means to control the spread of COVID-19, including improving air circulation, regular disinfection, personal protective equipment, COVID-19 testing
Reporting and recording COVID-19 cases in the workplace
Excluding infected or exposed employees from the workplace
Establishing return-to-work criteria
It is important to note that the Cal/OSHA’s return-to-work criteria closely tracks the CDC’s isolation guidance and provides additional requirements regarding when to allow employees who were exposed to COVID-19 to return to work.
For employers, please contact the attorneys at Freeburg & Granieri, APC to discuss how we can help your organization properly navigate the laws and requirements surrounding COVID-19 cases in the workplace. The attorneys at Freeburg & Granieri, APC can also assist employers draft COVID-19 prevention plans and mandatory COVID-19 vaccination and testing policies.
For employees, your employer should be following the rules to keep you and your coworkers safe. If your employer is not following the Cal/OSHA guidelines, contact the attorneys at Freeburg & Granieri, APC to discuss how we can help you protect yourself.
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