COVID 19 Q&A PT 2: I think an employee may be sick… what do I do?

This is Part II of our coronavirus COVID-19 QA. 

We’re going to be talking about what to do here when you think an employee may be sick or you’ve received words that they’re sick or that they come in contact with someone sick.

We’re going to go around the actions to take this as Part II of our QA, hopefully you’ve listened to Part I already. Where we talked about implementing a remote work policy and putting in telecommuting in your organization. 

Part III. After this we’re gonna talk about when an employee can refuse to come into work because of a fear of coronavirus. “Can they refuse to work if they don’t have a mask?Can they all be allowed to wear a mask at your retail store?” Like, “How do we deal with that? 

Part IV. We’re going to talk about group health insurance, and its interactions with coronavirus. We’re gonna talk about ways to take advantage of what’s covered, what’s not. 

Part V. We’re going to talk about Wage and Hour. We’re going to talk about what we have to pay here if we send people home because they’re sick, if they’re calling in sick and you don’t think they’re sick, because they just want time off, like, “How does that work?” We’re talking about the wage and hour implications. 

Part VI. We’re talking about liability. “Is this a worker’s comp issue? Are we liable as employers if employees come in and get sick?” 

We’re going to cover that in Part VI. For now, check us out. These questions have all come from social media and our clients. So hop on Facebook, Twitter, Instagram, LinkedIn. Message me, let me know if you have any questions so we can add them as we go.

All right. So here’s the first question I get. 

Can we send an employee to ask them to stay home or leave work if they exhibit symptoms of Coronavirus COVID-19 or just the flu? Like, Should we can wait?

Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza like illness at work during a pandemic should leave the workplace and be made to do so. During the H1N1 pandemic, the EEOC (Equal Employment Opportunity Commission) stated that advising workers to go home is not disability-related if the symptoms present are akin to seasonal flu, or in that time the H1N1 virus. Therefore, an employer may require workers to go home if they exhibit symptoms of COVID-19 coronavirus or the flu. So if someone’s there, and they’re sweating, they’re looking like a favor, or they’re hacking and coughing or they’re sneezing. It’s like, “Bro, go home, you can’t be here.” 

Okay. So, first of all, if they’re exhibiting flu-like symptoms, you can send them home. But that goes on to one more thing like what if they’re sweating and you go, “Well, maybe I should take their temperature.” 

Can you take the employees temperature at work to determine whether they might be infected?

This is a complicated one. The ADA (Americans with Disabilities Act) places restrictions on the inquiries that an employer can take into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring those exams and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has reasonable belief that the employee possesses a “direct threat” to the health and safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

Taking an employee’s temperature may be unlawful if it’s not job-related and consistent with business activity. So the inquiry and evaluation to whether taking temperature is job-related, is fact-specific. It’s going to vary a lot. The EEOC’s position during a pandemic is that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” Direct threat, that’s the key. The assessment by the CDC as the severity of the COVID-19 will provide the objective evidence needed for medical exams. If the COVID-19 coronavirus becomes widespread in the community, as determined by state and local health authorities, the employers may take the employee’s temperature at work. But if you’re in a place that hasn’t had a case yet, maybe there’s five cases in your state, none in your city, it’s not a direct threat. You can send people home because you’re scared or you feel like they’re scaring other people, or hell, they may have it, but you don’t want to do the actual temperature test.

Having said all that, as a practical matter, people can be infected with COVID-19 without exhibiting recognized symptoms such as fever, so temperature checks may not be the most effective method for protecting your workforce anyway, long and short is going as far as to take their temperature is about big step, you need to have a very good reason. If you’re in Washington State, Seattle, and you got hundreds of cases popping up around you make sense. But other than that, of course, you may be listening to this. So two, three weeks from now, who the hell knows where it’s going to be at that point, but unless it’s a direct threat, you don’t want to do the temperature, you just want to decide where they’re going to send them home, ask them to give a test.

Speaking of testing, an employee has tested positive for COVID-19. What do we do? 

You should send home all employees who work closely with that employee for a 14day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (that’s three to six feet) with them in the previous 14 days to have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep clean of your affected workspace. If you work in a shared office building or area, you need to inform building management so they can take whatever precautions they deem necessary, long and short is from the point of interaction. You need a 14-day quarantine with anyone who worked in close proximity. You want to send them home. So this, we actually had a case client right now. It’s medical so it’s a little different, but they did rounds with someone who’s suspected to have COVID-19 , it’s Saturday. Now, they did that on Monday, I believe so it’s been six days. They just found out today they’re experiencing no signs or symptoms, but they need to quarantine for another week. They need 14 days as a rule of self quarantine from that interaction. 

What if, though we don’t have a positive test, we just have a suspected but uncommitted firm case, What do we do if one of our employees is suspected but unconfirmed?

You just want to do the exact same thing as above, treat the situation as if the suspected case is a confirmed case for the purpose of sending home potentially infected employees. Communicate with your affected workforce to let them know that the employee has not tested positive for the virus, but has been exhibiting symptoms that lead you to believe a positive diagnosis as possible. Okay. Only the effective workers don’t cause panic as a rule. But yeah, you just want to send them a call saying assume any symptomatic cases are a case.

How do we distinguish between those suspected about unconfirmed cases of COVID-19 and just a typical illness that people get the flu?

There’s absolutely no good answer to this. There is no easy way for you to make this determination. But you just generally just kind of want to let logic guide your thinking. The kinds of indicators that will lead you to conclude an illness could be a suspected but unconfirmed case of COVID-19 include whether that employee traveled to a restricted area that is under a level 2, 3, 4 travel advisory warning, whether the employee was exposed to someone who traveled to one of those areas or similar facts, or if the prevalence of it in your area. Again, if there’s no one in your city who has it, you can kind of know, and they’re just in there, they got a call. It’s like, don’t think that’s coronavirus, necessarily. I mean you can even be cautious without just overblowing this, okay? But if there’s any reason to think about how there’s a decent connection, then it’s like, alright, that’s probably that we should assume it’s tough.

If COVID-9 becomes severe, inquiries into an employee’s symptoms, even if disability-related, are considered justifiable by the EEOC. So the general idea is that the more prevalent it is, the more okay it is for you as an employer to say, “Hey, bro, you got this thing. Help us figure this out.” Basically, even if these inquiries would normally be protected, they’re not. According to the EEOC, as a “reasonable belief based on objective evidence that the severe form of a pandemic influenza poses a direct threat.” Again, that direct threat language, you gotta maintain all information about employees and illnesses by the way in a confidential medical record, in compliance with the ADA. So don’t be just sticking that out and putting it in a company newsletter, “Hey, Jack’s got COVID. Don’t do that. No need to. 

All right. What about not a suspected case with an employee but one of your employees self reported that they came in contact with someone who had a presumptive positive case of COVID 19. What do we do?

Same thing as above, treat the situation as if the suspected cases would confirm the case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know the employees asymptomatic for the virus. But you were acting out of an abundance of caution. Great, great language to use.

One of one of our employees has been exposed to the virus but only found out after they had interacted with clients or customers, What do we do? 

Again, send them home for 14 days. Check out the coworkers list, do the same 14-day self quarantine treating the situation as if the exposed employee has a confirmed case of COVID-19 and you’re sending home the potentially infected employees you came in contact with. As for the third parties, you need to communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case. It’s not going to be fun, but you need to drop an email, give a call and say, “If you may have come into contact with an employee of ours who has a suspected case of this on this date,” something like that. “We are acting out of an abundance of caution; they have no symptoms. But there’s a suspected case here or there that has symptoms and is in quarantine.” It’s like okay, so give him a heads up. 

All right. Last thing we got, which is a terrifying question, is if we learn or suspect that one of our employees has COVID-19, Do we have a responsibility to report this information to the CDC and have the check on this one? 

The answer is no. There’s no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test is a mandatory reporter. And they will handle that responsibility. Okay, so it’s on the doctor. It’s kind of important you’ve not. I haven’t found a case where this is violating HIPAA or any of that kind of stuff. But it seems to me that if they know they have a case that a doctor knows and the doctor is the one who by law has to tell the CDC so they already know no action for you to take. 

I hope that was helpful for you. Just giving you a brief guide of what you need to do if you have an employee or suspected employee who may be sick with this virus. We’re going to go on to Part III next.

I hope this was helpful to you. Reach out to us on social media LinkedIn, Twitter, Facebook, Instagram @PeopleProcesses and Rhammy Alejeal. I would love to have your questions and if we can provide any help, we’re here to do so. Okay, if you need go-bys, if you need a sample document, if you’re just going, “Hey, I don’t even know where to start with us.” Reach out at peopleprocesses.com, there’s a chat button in the bottom right hand corner. There are downloadable materials for subscribers. We want to help in any way we can. Best of luck. Now it’s time for you to go out there and have a great day and get your work done. I’ll see you in Part III.