Legally Speaking: Isolate, Investigate, Decontaminate: The 3 Employer Must-Dos (Updated)
Submitted by Nadia A. Lampton, Taft/Law
Many Ohioans have stopped tracking all of the guideline and policy changes associated with COVID-19. We have grown accustomed to the uncertainty. No gatherings over ten people, unless the gathering is a peaceful protest. Always wear a mask, except for when it is not required. Maintain social distancing at all times, except when it is unreasonable to do so. Quarantine when you travel to Texas and Florida, but not New York or Michigan. Quarantine if you had direct contact with someone who tested positive for COVID-19, unless you are not required to quarantine.
The rules and the guidelines seem to be constantly changing. This has led to many employers questioning exactly what they are supposed to do when faced with the inevitable – an employee tests positive for COVID-19. Although the guidelines from CDC and the Ohio Department of Health seem to change frequently, there are three actions all employers must immediately implement upon learning of a positive case in the workplace.
Immediately upon learning of a positive case of COVID-19 in the workplace, or a direct exposure, the Employer should immediately isolate the individual. In all likelihood, an employee who underwent testing would be quarantining while awaiting test results; however, if the Employer finds itself in the situation where an employee learns while at work of a positive test result or that he or she was directly exposed to someone who tested positive, then the Employer needs to immediately isolate that employee and send him/her home to quarantine. Likewise, if an employer learns that a customer, vendor, or other invitee tested positive, the Employer should isolate any employee who came in contact with the infected individual.
With respect to the length of quarantine/isolation following a positive test, the length of quarantine depends on whether the employee is symptomatic or asymptomatic:
If the employee has symptoms, then he/she can return to work 10 days after they first had symptoms AND after they have been fever free for at least 24 hours (without use of fever-reducing medications) AND other symptoms of COVID are improving.
Note: the symptomatic employee should be fever free for a least 24 hours and any other symptoms of COVID should be improving, but it is not necessary that the individual be entirely symptom-free before returning to work. This is because some symptoms (such as loss of taste/smell) may persist for weeks or months after the positive test and recovery.
If the employee has NO symptoms, then he/she can return to work 10 days after the date of their first positive COVID test.
After the employee has been isolated away from other employees, the Employer should investigate to identify potentially exposed individuals and locations within the workplace where the infected employee or invitee traversed or worked. If the infected employee/invitee is able to talk via phone, he/she should be able to provide the Employer with most of this information. Employers should also speak with supervisors who may have this knowledge. Ultimately, the Employer wants to identify all places and people who could potentially have been exposed to the virus. Specifically, Employers must identify those who were in “close contact” with the infected individual.
According to the CDC, “close contact” means being “within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic individuals, 2 days prior to test specimen collection) until the time the patient is isolated.” Keep in mind that this is cumulative. In other words, multiple brief interactions throughout the day with the infected person could trigger a “close contact” finding. The Employer will want to identify any employees in the workplace who had “close contact” with the infected individual, beginning 2 days before illness onset, or if the infected individual is asymptomatic then 2 days before he/she took the test. Those “close contact” individuals will need to quarantine for 14 days after their last contact with the infected employee.
The Employer should immediately report any suspected infections or exposures to the local health department. The local health department may offer guidance and direction on any and all needs to quarantine based on the exposure type and length for each impacted person.
After the Employer isolates the infected individual and investigates to determine the identity of other individuals and workplace locations impacted by the exposure, it needs to professionally deep clean and sanitize the worksite locations impacted by the infected employee. This decontamination effort is above and beyond the daily cleaning and sanitizing that should be occurring throughout the workplace and workday.
In most cases, the Employer does not need to shut down its facility. But, you will want to close off any areas used for a prolonged period of time by the infected person. Wait 24 hours, and then clean and disinfect the area. If 24 hours is not feasible, wait as long as possible. The Employer should follow the CDC cleaning and disinfection recommendations to the extent possible. Those recommendations can be reviewed in full here. For now, here is the summary:
Clean dirty surfaces with soap/water before disinfecting them;
To disinfect, use products that meet EPA criteria for use against COVID-19, available here;
Follow the product instructions for safe and effective use; and
Consider the use of PPE depending on the setting and disinfectant being used.
In summary, the rules related to workplace shut downs, quarantining, and other return to work guidelines continue to change, which creates compliance challenges for employers. However, even amidst the changing guidelines, Employers should be prepared to immediately implement the above three steps upon learning of a positive case of COVID-19 in the workplace. After isolating, investigating, and decontaminating, Employers should consult legal counsel to determine what, if any, additional steps are required based on the current local, state, and federal guidelines.
If you need assistance in dealing with these and other labor and employment law issues, contact r Nadia A. Lampton at (937) 641-2055 at Taft/Law. This guidance is an overview of complicated legal issues and is not intended as specific legal advice.