Episode 100: COVID-19: When Workers Test Positive

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers General Counsel and Executive Vice President. Today on the podcast, we are fortunate to have two of Cal Chambers employment law experts back with us. Bianca Saad and Matthew Roberts are joining us to discuss another employment issue related to the COVID 19 pandemic. Welcome, Bianca and Matt.

Thank you, Erica. Happy to be here.

Thanks, Erica. It's a pleasure as always.

Unfortunately, it's December and we are still talking about COVID 19 as the world, particularly California, is being hit with another round of COVID 19 cases. Unfortunate that we have to continue talking about this matter. Recently we were discussing topics that are coming up on our Labor Law helpline here at Cal Chamber. And the Labor Law helpline is for Cal Chamber members who have different compliance questions. And one of the questions that we are starting to hear more frequently again involves how employers should respond when their first employee tests positive for COVID 19. And as we are seeing another surge, if you will, of COVID 19 cases. I know Matt and Bianca, you've been speaking to a lot of our members that are experiencing their first case related to an employer. So you know, when this happens, what should employers do? How should they respond?

Yeah, this has been a subject matter that's been hitting us on the helpline quite a bit recently. I think you're right. It's from the surges that we're starting to see over the last month or so and that I think we can anticipate we'll continue to see going forward. So it's an important topic for employers to tune into because in addition to just some general guidelines, we're now starting to get more specific concrete legal requirements. And really the first step that we're seeing when an employer is calling us or they're starting to experience their first positive case is that we need to make sure that we are, you know, of course, excluding that employee from the workplace, but also doing our own contact tracing within the work site to determine if there's anybody else who we also need to exclude under that quarantine or self isolation protocol. You know, we had some Cal OSHA regulations that were approved and went into effect on November 30th that touch on a lot of these topics. They are very new, of course, and they're still being explored by everybody in the employment line and HR community. For their part, CALOSH is going to help employers with some guidance that should be forthcoming if it isn't already out. And one of the first things they want you to see is when you have a positive case, we need to figure out if that positive case has had any close contacts during that high risk period of exposure with anybody else in the work site. And of course, there's a lot of loaded terms there in that statement. The first one is what's a close contact? What is it that employers need to look for? And the way close contact is defined currently is it's a cumulative period of 15 minutes over the course of a 24 hour period where the person who was positive was within six feet of somebody else. And remember, it's cumulative over the course of this. So it doesn't have to be 15 minutes all at once. But if we learn that somebody who was positive was within 6ft of an employee for a cumulative 15 minutes over that 24 hour period, we have what's now a close contact. What's really important for employers to keep in mind is that the definition doesn't care if they were wearing face coverings or not. So even if both parties are wearing face coverings, all the definition cares about is that they're within that 6ft distance for that period of time. So once we first figure out if we have anybody who is a close contact or we have several who are close contacts, now we have to figure out were they close contacts within what's known as the high risk exposure period. And that high risk exposure period can be defined one of a couple different ways, depending if it's somebody who tested positive and they were asymptomatic, that high risk exposure period is from two days before they had their test taken up until 10 days after the test. So if we have any close contacts within that timeframe, then now we have a high risk exposure. And the rules say we have to exclude that person from the work site for 14 days separately. If we have somebody who was symptomatic and then we later learned that they test positive, that high risk period is two days before they became symptomatic and then 10 days after their symptoms first arise. So again, kind of this 12 day period. So employers have a lot of work to do to getting up to speed on contact tracing. But that's the one first important step because the whole goal with this is to prevent an outbreak where we're losing our entire workforce because we're not getting high risk exposed employees out of the work site.

Okay, so there's a lot there.

Oh yeah, absolutely.

And that's what employers probably should stay up to date with. Our Cal OSHA website. And like I said, if that guidance isn't out, we should stay up on it. But really that's the first step, right, is because we've got to get potentially exposed people out of the work site from those who are exposed to the one who tested positive. What I've gotten on a question quite frequently is, but then what about that person who is exposed to that person? It goes down the chain. And at least the one bit of good news for employers is that what the rules only care about at this point is those who have tested actually positive, a laboratory confirmed test. So we're not worried about that chain of exposure, exposure, exposure. We just need to figure out who that person you tested positive with was in close contact. And if it was nobody, we're good to go at least on this contact tracing and excluding people from the work site aspect.

And as far as the employer having proof that they've gone through these steps, do you recommend that the employers document the steps that they've taken once they are made aware of potential COVID 19 case in the workplace?

Oh, yeah, absolutely. Part of those regulations that, you know, just came down has this injury and illness prevention program component to it. And that's, that's one of the components is how does an employer respond to a positive case in the workplace? And so as part of that, what's known as an iipp, you have to have a procedures in place for how we do that. And so what that normally means is reaching out and talking to your supervisors, your frontline managers, the actual employee who tested positive, and then documenting those conversations, figuring out that you've gone through and made sure that we've found out whether or not there were any close contacts. And then the steps we took after that.

And then as far as employee confidentiality, I know that there's a lot of laws in California that protect the privacy of employees. And when we're dealing with medical information, we need to keep those in a confidential file. When we're dealing with leaves of absence or reasonable accommodations. How does employee confidentiality come into play when we're trying to, quote, unquote, contact trace?

Yeah, that's a fantastic question. That's one that we get quite frequently. Before we got the regulations, both the EEOC and the DFEH have said that we can tell our employees, and in fact, we really should tell them that they may have been exposed in the workplace. As we're part of doing this contact tracing. You tell them that they may have been exposed, but you don't divulge the name of the person who may have exposed them. And we all understand in Practical terms, that if we have smaller work sites or if we just have smaller work units and they were exposed, they can probably figure it out. And we understand that. But the primary goal from the employer is to not share the specific identifying information of the name of the person who it was. So you reach out to the employees and you say, look, you may have been exposed to COVID 19. We're trying to do some contact tracing, and you figure out their movements and whatnot. And then you tell the employee, you know, based on this, you should consult with your medical provider or your local health department in terms of informing them that they may have this exposure.

Bianca, I know you're our local ordinance guru, and I know you've spent quite a bit of your time keeping track on the various local sick leave ordinances and different requirements. How did the local health department rules and regulations come into play when there's a COVID 19 case at the workplace? And what should employers keep? Should employers keep their local health departments in the back of their mind as well?

Yeah, that's a great question, Erica, and a fantastic suggestion. Absolutely. Employers should be having the local health department in mind anytime they do have a case. The local health departments actually do vary in terms of what is going to prompt their desire to get information from an employer. So what would prompt a reporting obligation? And that may be separate and apart from the requirements that we already see through state guidance. Right. So it is important that employers be mindful of their particular local health department. And as far as. And a lot of them, I will say, have been pretty good about updating their information on their websites, and some are more accessible than others. But employers can certainly bookmark that and have a regular place they go to, just like they do with the CDC and California Department of Public Health and all the rest. And with that, too, keeping in mind, when you have an employee who may need to be out on leave because they have tested positive, one of the next things that an employer will want to do is see if there's any leave to be administered. So if there is any leave that they would be eligible for under the Federal Families First Coronavirus Response act or the ffcra. Now, at the local level, there are a number of localities that have passed their own COVID 19 supplemental sick leave to kind of fill that gap for those larger employers who are not covered by the FFCRA, because the FFCRA only covers employers with fewer than 500. Now, on top of making sure you're not subject to any local ordinance, you'll also, if you have 500 or more employees, you'll need to be aware that you're also subject to the state COVID 19 supplemental sick leave law. And that was AB 1867 that was signed and went into effect immediately on September 9th. So that could potentially apply. One of the qualifying reasons for the state supplemental sick leave is, for example, when an employee is prohibited from working by their employer due to health concerns. So let's say maybe due to a close contact or an exposure that is now going to require an employee to stay out of the workplace that could make them eligible for that leave.

Wow. I mean, between the two of you, there's just so much for employers to think about. And my heart goes out to everybody for that matter, on trying to continue putting a smile on our faces as we go through this challenging time. But where can, you know, where can our listeners go? Bianca, for some more information about, you know, what to do when employee tests positive, what's a good resource for employers to utilize?

Well, Cal Chamber has a great COVID 19 resource page that will link to all of the number of the agencies right in the state guidance. So that's great. As Matt had mentioned, you know, we are anticipating additional guidance with these Cal OSHA emergency regulations that just went into effect. And so definitely employers should be keeping their eye out for that as well. And I'm sure our resource page will be updated once we have our hands on that information as well. To those of you who are members and have access to HR California, we do have information on all of the local COVID 19 sick leave ordinances. Those can be accessed in our local ordinance section as well.

Fantastic. Well, again, wonderful information that both Matt and Bianca are providing to everybody and it's a pleasure working with both of them and having all of this great information to share with all of our listeners. So thank you both for joining me again today on Cal Chambers Workplace Podcast. Thank you for joining us on the workplace. Please visit calchamber.com to learn more about new laws and to comment. Subscribers, subscribe and share our podcast.