The question posed is whether a company has the obligation to inform other employees if a particular employee has tested positive.
The CDC advises that if an employee tests positive, other employees should be informed of their possible exposure:
“Inform employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (ADA).”
This author has been unable to find any contrary authority to his duty to inform. Additionally, the failure to do so could very well impose liability.
One of the first cases on this subject is the Walmart case. It demonstrated the significance of warning other employees. In that matter, the estate of an Illinois Walmart employee sued for wrongful death in the case of Toney Evans v. Walmart, Inc. (Cook County Illinois Circuit Court, filed April 6, 2020, Case Number 2020L003938). The estate alleged management knew several other employees exhibited symptoms of the Coronavirus, allowed these employees to continue working and did not warn the deceased or others of the possible risk.
But it is significant to note the case also alleged the failure to maintain a safe working environment due to:
- Not disinfecting the store or providing employees with masks/latex gloves;
- Not enforcing social distancing guidelines;
- Failing to evaluate employees for symptoms (for example, not using non-touch thermometers or otherwise monitoring employees for sickness);
- Not inspecting, cleaning or sterilizing facilities or equipment; and
- Not implementing any infectious prevention program.
Hopefully, a company will have implemented reasonable safety measures across the board–exactly what did not occur with Walmart. The take away: As long as a Company implements safety procedures before and after, and notifies other employees, it should have a relatively safe harbor from liability.
Steps to Take:
The first step is to meet with the affected employee. This should be done in a confidential setting; behind closed doors or by phone. Explain the importance of a healthy job environment and a requirement of the person to self-quarantine at home. Tell him/her to stay home until one is free of a fever for at least 72 hours and at least 10 days have passed since the symptoms first appeared.
Then inform other employees. When doing so, it is crucial to preserve confidentiality (per ADA) and not disclose the identity of the affected employee. Never do any of the following:
- Disclosure of the infected person’s name or job title;
- Disclosure of any of the person’s symptoms;
- Disclosure of how long a person may have exhibited symptoms;
- Disclosure of the medical condition of the employee;
- Disclosure of what medical procedures the person will undergo;
- Any other details of the illness.
By informing the other employees, the conversation can be verbal, informal and for each individual employee who may be exposed. The conversation can be as follows:
“Hi John. I’d like to briefly discuss a matter in private with you. There is no reason to be alarmed, but I wanted to discuss something with you briefly.
As you know, your Department consists of approximately ______ employees. One of those employees has just tested positive for the Coronavirus. That employee was last at the Club on __________ and is now at home under self- quarantine. We bring this to your attention because you worked in the same Department as that individual. Because of confidentiality, we cannot disclose that person’s name.
We will continue taking steps to make the work environment clean and healthy. This consists of ____________________________. We are hopeful these measures will be adequate for your safety.
For this reason, it is important that you self-monitor for any symptoms and let us know if any appear.
Feel free to seek medical advice if you wish. We honor all doctor’s notes. If your doctor has a particular recommendation, please get a note from him or her and give it to our HR department.”
The real question is how far should you go. For example, the CDC which is exorbitantly conservative, recommends that employees self-quarantine at home if they had been in close contact with an infected person. “Close contact” is defined as “being within approximately 6 feet of a COVID-19 case for a prolonged period of time.” But enforcing that to the letter of the law, would mean many of employees would stay home and the company would have a hard time operating.
In many ways, telling other employees who were in contact to stay home would be an overkill as long as the following prerequisites have or will be met:
- Historically in the past, protective measures have been implemented, including cleaning, sterilization, masks, gloves, etc.
- Cleaning and sterilizing any of the equipment this employee may have been in contact with.
Note as a practical matter, telling other employees they may have been exposed to someone who was tested positive means they will put 2+2 together and know exactly what employee. Especially when the employee has been sent home. But that realization does not mean the employer would be found liable–it is simply the inevitable result of making the disclosure.
OSHA: At the present time, OSHA does not have specific guidelines as to the Coronavirus. For example, in March of this year, OSHA has prepared its “Guidance On Preparing Workplaces For COVID-19”. It has elaborate details of protective measures to ensure a safe work place, but there is no specific mention of having to inform other employees (for example, in a section titled “Steps All Employers Can Take To Reduce Workers Risk Of Exposure”).
This means if there is any enforcement, it will have to be under the General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1)), which requires employers to furnish to each worker “. . . a place of employment, which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
The OSHA guidelines dovetail back into the CDC, because the Agency is allowed to utilize outside nationally recognized standards.
Worker’s Compensation:
Many experts predict there will be a rash of lawsuits by employees who allege contacting Coronavirus because of exposure at work. But there is some good news.
A typical Superior Court lawsuit sues, among other damages, pain and suffering, emotional distress and even punitive damages. And if death occurs, a wrongful death action. But if the Coronavirus is considered an occupational disease or injury, those damages are not available and the employees only recovery is for workers’ compensation wage loss and permanent disability ratings.
But be careful. A creative lawyer will allege the worker has suffered a mental or psychic trauma, no different than physical injury, because of exposure to the virus.
Disgruntled Employees:
What if an employee refuses to return to work, claiming the facilities contain some of the Coronavirus germs? If they take that position, it would be unjustified.
If the Company takes ongoing efforts to clean and sterilize such equipment, this fear would be misplaced. Certainly, the employee can decide to use some of his or her accrued PTO. But I cannot stay away indefinitely or even utilize the new federal paid sick leave protections. Those protections are under the Families First Coronavirus Response Act (HR 6201), but do not allow absences for a generalized fear of contracting the virus without any substantiation.
There is some credence however, to the argument that an employee can sue for mental distress for fear of being exposed to the virus. This is exactly the basis of the new lawsuit as to what occurred to the guests on the Grand Princess cruise ship as recently reported by the media. Some of the guests sued, even though they did not test positive; it was based on the mental distress of being fearful they might contract the virus. Archer v. Carnival Corp., No. 3:20-cv-02381 (N.D. Cal. filed Apr. 8, 2020)[Of the nine named plaintiffs, the Complaint identifies only one who was diagnosed and treated for COVID-19].
But that cruise ship presented a totally different environment for most companies. Not to mention the fact that few employees would have the resources to find an attorney to bring such an action, especially since it would not be a class action.
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