Episode 78: COVID-19 Positive: Employer Obligations

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers, Executive Vice President and General Counsel. And with me on the podcast today is one of our favorite guests, Jennifer Shaw of the Shah Law Group. Welcome, Jennifer. Hi, Erica.

How are you today? I'm doing fabulous.

It's right before the Fourth of July. You know, things are a little bit crazy as they are in 2020. I've decided 2020 is just the year of who knows what, but otherwise great. And, you know, we're back again to talk about a timely topic. Of course, it's COVID 19 related, unfortunately. But, Jennifer, what happens when an employee lets you know they've tested positive for COVID 19?

Well, that is sort of the $64,000 question these days. Right. And part of it is there's so much guidance out there that these poor employers are trying to figure out what to do. But I think there are actually just a few steps you need to take as an employer when you find out that somebody has tested positive, because that's really where your legal obligations start getting a little tricky.

Right.

So the first thing, of course, is you want to tell that person to stay home. And I realize this is obvious, but I had a client who called me who called me yesterday and said, well, Jen, we're an essential business. So we decided to have the person keep coming to work. And I had to take a little deep breath and say, okay, being an essential business has nothing to do with your obligation to keep the workplace safe. So got you out of sheltering in place. Right. That's why we care about being an essential business. But once you have an employee who's positive, first thing that happens is they stay home. And they're going to stay home for 10 days, okay, after the first symptoms, but also 72 hours after the resolution of their symptoms without medication. So if somebody's getting over this really Quickly, by day three, they feel great. We've got to wait 72 hours, then they can come back. But if somebody's really sick and they're feeling cruddy on day 14, they. They're not coming back to work until they've had three days without symptoms.

So, Jennifer, I know you're a fabulous labor and employment lawyer, but I don't think you're a doctor. Where is this information coming from?

Oh, it's such a good point. Here's the thing that a lot of people don't realize. The Department of Public Health issued a memorandum on June 16 that is addressing specifically this issue. And the reason it's so important is because, yes, we have some guidance from the Centers for Disease Control in Atlanta. Yes, we have some guidance from public health departments. Yes, we've got some guidance from just general sort of what do we do under OSHA and Cal osha, but this is actually the California Department of Public Health saying, look, this is what we expect you to do. And the guidance was issued in conjunction with Cal osha, so, you know you are meeting all of your safety obligations if you do this.

So let's talk about Cal OSHA in a second. But just to get my head wrapped around this and to bring clarity to this issue that the California Department of Public Health issued some guidance to employers. It's on Cal Chambers Resource page, and the subject is responding to COVID 19 in the workplace. Jennifer, what other topics does this guidance talk about in addition to that timeframe that you initially mentioned?

Well, it talks about all of the steps you should take. For example, when somebody tests positive, you've got to figure out who was in quote, close contact with that person, because anyone who was in close contact has to be quarantined for 14 days. Okay? Now if they get sick on day two and their symptoms are gone on day six, then we just do the additional three days without symptoms and they can come back to work. But because we know the incubation period for this virus can be up to 14 days, if there's no symptoms, they're out 14 days. I realize it sounds weird that they would stay out longer if they have no symptoms than if they have a short course of the virus, but that's just how it works. So that's one thing that the guidance talks about. Now, what does it mean to be in close contact? We've got a great definition. You're with the person who was infected for at least 15 continuous minutes and you're within six feet of that person. Okay? Now note, even if you have a mask, okay, you are still within six feet of that person. And if you're there for 15 minutes, there is a chance that you could be infected. That's what we mean by close contact. So once you've sent the person home who you know is infected now you look at your workplace and you say, okay, who's had close contact with this person? And you tell those folks you're going home 14 days. If you have no symptoms, you can come back on day 15. If you get some symptoms, you test positive, et cetera. That's great. You're going to be out until you're symptom free for three Days. That's how that's going to work now, remember?

Okay.

If you. Yep, go ahead, Erica. Sorry.

No, no, sorry. And I'm interrupt. You keep going.

No, all I was going to say was what gets tricky here is if you send somebody home, people often wonder, well, do I have to pay that person? You're going to have to pay them for the day you send them home if it's in the middle of a shift. Right. Because we have reporting time, pay obligations. Otherwise, if they're non exempt employees, you don't have to pay them directly. You may have to pay them families. First time, right. The emergency COVID 19 sick leave, you going to have to let them use their sick pay, their vacation, that sort of thing. If they're an exempt employee, you have to be very careful that you tell them don't work. Right. We don't want you working. And that's probably not practical because if you're sending it home, if you're going to send them home, they could work. So a better option is to keep paying the exempt people and let them do their work at home.

Which is.

Permissible even under the families first, right? Absolutely. In fact, if an employee can telework, then they're not entitled to the families first.

That's the argument. Unless, for example, it's a child care situation where mom can take these days off and dad can take those days off and then they're teleworking. They could be eligible for that.

So I just want to touch base on the contacts or the close contacts because, you know, as I'm listening to you explain what the rules are, how do I know who my employee might have been in contact with?

Well, this is a great point. You've got to ask the employee. All right? Think back over the last two weeks. Most of us, by the way, are creatures of habit, right? We come in the office, we sit at our cubicle, we go to lunch, we go to the, the break room, if it's even still open. These days, most employers have closed their break rooms. You know, I went to the bathroom twice, there was nobody in there. So the idea is to really put on your Nancy Drew investigator hat, right, and say, okay, let's talk about who you've been in close contact with. Now here's the good news, Erica. For many people, they have been in close contact with no one. Because in our office, for example, I'm telling people, you sit at your desk, you sit in your office, you don't interact with people, you call them. If you have questions, we're never going to be within six feet of you. I've taped off all of the floor so that I know where six feet is. Nobody steps within that perimeter. So even if somebody gets Covid here, nobody else has been in close contact with them. This is why those preventive techniques that I think a lot of people sort of frowned on and thought, well, why is this even important? This is why it's critical.

What I also thought was something to reemphasize is when you mentioned that close contact where two people are in less than 6ft apart from each other from 15 minutes or longer includes if those two individuals are wearing a mask. And I think that's critical, particularly since the governor, you know, it's right before 4th of July. There's a big heightened concern about family gatherings and gatherings in general surrounding the fourth of July holiday, and a real big push to wear masks or cloth face coverings. So I think that's great because I think a lot of individuals think that if I'm wearing a mask, I don't have to adhere to the 6ft physical distancing recommendation.

Right. And I understand why, because when you look at the Department of Public Health memoirs, it says you don't have to wear a mask if you're in a room, like a big room that has a bunch of cubicles, if you can stay back six feet from other people. So a lot of folks are thinking, well, I don't have to wear my mask. But if you're not wearing your mask, you could be a close contact. And I think a lot of people don't think about this.

So just going through my head, if an employee contacts the employer and informs them that they've tested positive for Covid and identify people with whom they believe they've been in close contact with, then the employer needs to go talk to those individuals. Can the employer reveal the employee's name or who it is? No.

Because of confidentiality, we have the California Confidentiality of Medical Information Act. There are also some other laws that you have to be careful of. By the way, one of them is not hipaa. Everybody thinks HIPAA is the big game changer here. HIPAA would be important if I were to tell you, bring me your medical record and then I put it on the Internet.

Right.

Or if your doctor revealed information they shouldn't have revealed. But most of the time, HIPAA's not gonna come up in just a regular workplace where you're not a doctor's office or a clinic or a hospital. But there are laws about confidentiality so what you say to that person is, you know, we think you may have been exposed to somebody. You're going to have to be quarantined, right? And here's the thing. This is frustrating, right? Because what if the person says, what do you mean? I was exposed to somebody who I've been really careful. Like, you're going to take money away from me because somebody says they were within close contact of me. This is why. And I know it sounds like I'm trying to spend other people's money, but this is why we say, look, if you can possibly pay for the quarantine, pay for the quarantine because you're going to save hundreds of thousands of dollars if you have a safe workplace, for one thing. Second of all, you don't want anyone to be discouraged from calling out because they don't have enough sick leave. This is something that the Department of Public health memo from June 16th actually talks about. So if you can possibly swing it, pay for the time, you can require them to use their, you know, you can say, look, use your sick time. Most people are going to want the money if they have any symptoms at all and they're getting tested, they're going to families for sick leave for 80 hours. So be creative about how you are putting these people off work. So you're not discouraging people from saying, hey, I'm not feeling well, or, yeah, I get it. You want me to quarantine, I'll quarantine.

Great information. Just rounding this podcast out, kind of covering all of our bases with regards to when a positive COVID test arises. In the news, we've been seeing reports of local establishments having an employee test positive for Covid and shutting down for a small period of time. In addition to the employer contacting employees with whom may have been in close contact with an infected person, who else does the employer need to notify?

They're going to notify their local public health department. And a lot of employers think they don't need to do that because they're thinking, oh, well, the doctor or the hospital is going to notify if there's a positive result. But you have an independent obligation to notify if you're the employer. You also, if the person is positive, is hospitalized for at least 24 hours, you have to put that on your OSHA log 300. And you also have to notify Cal OSHA. So there are a number of other reporting obligations. Again, I know that a doctor's office is normally going to do it, but the issue is we are thinking about making sure that nothing falls through the cracks, especially right now with the spike we're seeing. These hospitals are busy. The doctor's offices are busy. They may not necessarily be reporting everything because they're just out of time and they don't have enough personnel to make that happen. So the idea that Department of Public Health is looking at is, look, let's just be as fail safe as we can.

Fantastic. Jennifer. I think this is great issues to cover and quite honestly, an issue that's not really being publicized very much right now. We are still so much on preventive measures and the measures that employers need to take to be able to maintain a healthy workplace. But there's not a whole lot of what do we do if or when? Because it's starting to feel a little bit more like a when just seeing the rates of cases increasing right now. So thank you so much and for all of our listeners. Again, this information is on the California Department of Public Health's website as well as Cal Chambers resource page. And one thing I also want to let everybody know is Jennifer, as you've been listening. She's the founder and partner of the Shah Law Group and she does this great weekly podcast, I think Jen is it called Wake up with Jen?

Yes. Wednesdays Wake Up With Jen Yes.

And I just got to plug it, Jennifer, because it's very great information. It's an hour if that, and it's a great place to in addition to listening to KAL Chambers Podcast and all of KAL Chambers resources, it's a great supplement. Thank you, Erica.

It's always a pleasure to be here.

And thank you, Jennifer. And thanks to all of you for once again joining us on the Workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.