My Employee Has COVID – Now What Do I Do?

By VICKY BROWN

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You know, dealing with the pandemic is so complicated, and fluid, that business owners have, many times, have been at a complete loss as to what to do and when to do it.

Now, with the clear understanding that things are changing seemingly every day, and there are different guidelines for different places, I’m going to take a stab and giving you the most recent guidelines for and from the County of Los Angeles.

Again, keep in mind, this is what is in place here (Los Angeles county) and now – December of 2021.  As with everything, and particularly this thing, it’s always best to check in with counsel to be sure you have the most up to date information and instructions.

And BTW – if you aren’t in LA county, this can still be a really good overview that can help you craft the right questions to ask your attorney.

Now, on to dealing with COVID in the workplace.

Let’s talk about mandates – vaccine mandates, testing mandates – all sorts of mandates.

First off – if you have more than 100 employees, you fall under the OSHA requirement to mandate vaccines at your company.  Now, I’m not going to focus a lot on this requirement for larger companies – I put a link in the show notes that will give you more details and information.

In this episode I’m going to focus on companies under 100.

OK – so Vaccine and/or Testing policies.  Are you allowed to have them – short answer, yes.

On the vaccine side – you are allowed to require vaccines for everyone at your worksite.  Now, along with that you also have to allow for possible accommodation requests based on medical or religious reasons.  If your employee asks to be excused from the requirement based on their medical condition, or their religious beliefs, you have to consider all the evidence and make a decision as to whether or not you are going to offer them an accommodation.

“…if you institute a vaccine mandate without giving the employee the opportunity to request an exemption – you’re asking for trouble, and you can pretty much expect the letter from their lawyer.”

What’s an accommodation?  Well, it might be weekly testing, or making their job remote only for a period of time or permanently, or any other compromise that might meet both their needs and those of the business.  Keep in mind, deciding if and how you will accommodate an exemption request is definitely something you should discuss with counsel.  You can easily find yourself in a difficult position – all sorts of pitfalls come to mind: religious discrimination, the American with Disabilities Act requirements, setting precedents and treating all employees equally – yep, it’s really a bit of a soup.  So step carefully.

What I can say, with relative certainty is that, if you institute a vaccine mandate without giving the employee the opportunity to request an exemption – you’re asking for trouble, and you can pretty much expect the letter from their lawyer.

On to testing – yes, as an employer you can absolutely mandate something like weekly testing.  And that can be as an accommodation to the vaccine mandate, or it can be a stand alone.  As in, everyone has to test, every week.  Now, as you might guess, there are some restrictions:

The tests can’t cost the employee anything – meaning, if there is a fee for the test (sometimes they are offered free of charge, but sometimes not), then you as the employer have to pay for it.  And, you also have to pay for the time it takes the employee to go get tested – it’s considered work time.

There are a lot of ways weekly testing can happen: you can send everyone to a doctor, clinic or other testing site or you can contract with a company to come onsite and do weekly testing for you.

A kind of nice third alternative has developed recently, you can provide in-home rapid tests to the employee for them to use onsite.  This option eliminates the trouble of going offsite and the results are usually faster than other options (can be in as little as 15 minutes).  But keep in mind, these rapid at home test kits cost real money, and when you multiply that by the number of employees you have, and the number of weeks you need – the cost can be a real budget buster.  While, on the other hand, my local CVS pharmacy has free rapid testing with same day results.  Now sure, it’s not really immediate, but it’s also free.

So, if you are going to go with mandatory weekly testing, carefully explore all your options.

Next, what do you do if you have a COVID case at your office.  Well, once you know of a confirmed case, immediately isolate that employee – send them home and keep them there until they are out of the isolation period.  Now the thing that can be a bit tricky here is this applies to a confirmed case – so when should your spidey sense go off?  If someone isn’t feeling well, and are exhibiting COVID symptoms, they should be sent home and tested right away.  Oh, and by the way – although the federal COVID supplemental sick leave law has expired, there are a lot of local ordinances around on the subject – so check out what is happening in your city/county/state.  And one other point to remember, results of COVID testing is considered protected medical information – so be sure to treat it that way.  It’s confidential, so don’t share.

Now, in addition to isolating the person, you have to notify people who have been in close contact.  LA County defines close contact as someone who was within 6 feet of the person for a total of 15 minutes or more over a 24 hour period – and it doesn’t matter if they were wearing a mask or not – or – someone who had quote unprotected contact with the case’s body fluids and/or secretions.  In English that means being coughed or sneezed at or sharing drink or food or utensils.  So, once you determine who may be considered someone who had close contact, you have to notify them of a possible exposure.  Again, you have to do this without broadcasting anyone’s medical information, so the phrase to keep in mind is – we have been made away that you may have been exposed etc.

You need to give them instructions on next steps.  And again, in LA county, the next steps are determined by whether they are fully vaccinated or not.

If they aren’t vaccinated they have to be restricted from work, instructed to follow isolation guidelines and you as the employer have to provide no cost testing for them.  Needless to say, the time they use to get tested is also paid time.

As to their isolation guidelines – they have to stay home until 10 full days have passed since the last known close contact, provided they never develop symptoms – or 7 full days (eff 12/27/21 updated to 5 days) have passed since close contact, provided they never develop symptoms and they have a negative test result collected on or after Day 5 from the date of their last exposure.  And, even when they come back to work, they still have to practice social distancing and mask up for a minimum of 14 days after their possible exposure.

Now if they do develop symptoms within 14 days, then they can only return to work if at least 10 days have passed from when their symptoms first started, their symptoms have improved, and they have been fever free for at least 24 hours without the use of fever reducing medicine.  So, they either have to meet all those points, or they must have a negative result from a test performed after their symptoms began, at least 10 days must have passed since the last known close contact, and they have been symptom free for at least 24 hours without medicine.

On the other hand, if they are fully vaccinated, or if they recently recovered from the virus, LA County says they can continue to work as long as they don’t have any symptoms.  If they have been fully vaccinated testing is recommended; if they have recently recovered testing is not recommended unless they are symptomatic.  And, in either case, they should monitor their health for 14 days after the last contact with the infected person.  And, if they develop symptoms within the 14 days, they have to be restricted from work.

So, what about if someone wasn’t in close contact, but they have symptoms?  Well, if they test and it’s negative, they can return to work after they have been fever free for at least 24 hours – and again, without medicine.  But if they don’t get tested, and or cleared by a doctor – then you should assume they are a COVID case, and follow those isolation guidelines.

One, well two, last things – if your company has 3 or more lab confirmed cases at the worksite, within a 14 day period – then that’s considered an outbreak; and a whole host of other requirements apply – including notifying the LA County Dept of Health within 48 hours.

And, don’t forget workers comp.  Under certain circumstances, California’s Senate Bill 1159 presumes the worker contracted the illness at work – so they would be eligible for workers compensation.

OK – that’s as succinct an overview and I can give.  But in reality, it’s a good idea for you to read the material, and maybe even keep a copy on hand.  As employers we have a lot of responsibilities and requirements around dealing with the pandemic – so check out the links in the show notes, make sure you have reference material and requirements at hand, you have the proper protocols in place, and you know the contact info for your attorney.

We can all get thru this, but it’s going to take a big lift from each of us.

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