Santomassimo Davis Legal Alert:
That’s the first piece of advice Christopher Santomassimo, a partner at Santomassimo Davis LLP Outside General Counsel™ Solutions, a New Jersey-based firm with offices in Philadelphia and New York, offers clients who discover an employee in the workplace has tested positive for COVID-19.
Instead, Santomassimo, whose firm offers OGC Solutions®, a fully outsourced virtual legal department to companies for a fixed monthly fee, says, “It’s much better to act decisively than to react out of fear.” Having a solid plan will avoid legal exposure and make employees feel comfortable.
Here are four steps that the OGC Solutions® team advises employers to take the moment an employee exhibits symptoms or tests positive:
Step 1: Send the employee home.
“Don’t wait until the end of the shift,” Santomassimo warns. “You need to remove the sick person immediately. Act within minutes, not hours.” If the employee does not require urgent care, tell them to notify a health care provider and isolate for 10 days as directed by the Centers for Disease Control and Prevention, even if he or she is not exhibiting symptoms. In addition, you may be required to report all work-related employee COVID-19 cases to the Occupational Safety & Health Administration. Consult your legal partner for further guidance.
Step 2: Vacate and sanitize work areas.
Thoroughly clean and sanitize the employee’s work area and common spaces (including high-touch surfaces, like doorknobs) the employee may have used in the days leading up to the diagnosis, using best practices recommended by the CDC.
The size of your office or facility may determine whether you can stay open during this process. “If you’re running a big manufacturing facility where workers are relegated to a small area, you may be able to just shut down that area and clean it thoroughly,” Santomassimo says. “But if you’ve got people convening in various rooms in a small office, chances are you’ll need to shut down while you sanitize everything.”
Step 3: Apply the 6-15-48 rule.
Act quickly to identify and notify any employees who might have been exposed. The CDC has developed a simple numerical sequence to help follow its contact tracing guidelines for non-healthcare businesses: 6-15-48. This means infected employees should identify those who worked within 6 feet of them for 15 minutes or more within 48 hours of them showing symptoms or testing positive.
Employers should notify those who have potentially been exposed and require them to isolate for 10 days. But they cannot divulge the sick worker’s identity when making these notifications. “It’s very important not to identify who the sick employee is, even if you think people already know,” Santomassimo says. “You are legally obligated to protect their privacy.” One tip: Work with your legal partner to develop a simple notification form in advance to save time if notification is needed.
Step 4: Determine the return-to-work date.
Some employers may be tempted to require a negative test before having all affected employees return to work, but testing is costly and complicated (as some employees who had acquired COVID-19 may test positive long after they are no longer contagious). Instead, the CDC recommends that those who never develop symptoms can end quarantine 10 days after testing positive, while those with moderate symptoms can end isolation after 10 days if they have gone at least 24 hours without fever or other symptoms. (Those with severe symptoms may need to continue isolation for longer periods.)
Employers should clearly communicate when everyone is expected back at work. “Consistency is really important here,” Santomassimo notes. For one thing, it demonstrates that you’re applying the rules uniformly so that you don’t open yourself up to potential challenges. “A simple, clearly-communicated plan helps assure everyone that the workplace is as safe as possible, so they will eventually feel comfortable coming back,” Santomassimo says. “You really want to inspire confidence.”