What Should Employers Do When a Worker Tests Positive for COVID-19?

Even if employers intend to follow the Occupational Safety and Health Administration's (OSHA's) currently-blocked emergency temporary standard ?(ETS), they should consider going beyond its requirements when an employee tests positive for COVID-19, legal experts say.

"Employees who test positive for COVID-19 should be removed from the workplace immediately," said Arielle Eisenberg, an attorney with Cozen O'Connor in Miami.

When should they be allowed to return? The ETS says an employee can't return to work until the earlier of the following, explained Shannon Farmer, an attorney with Ballard Spahr in Philadelphia:

1. The employee receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to take an NAAT test;
2. The employee meets the return-to-work criteria in the U.S. Centers for Disease Control and Prevention's (CDC's) isolation guidance; or
3. The employee receives a recommendation to return to work from a licensed health care provider.

Under the CDC's isolation guidance, asymptomatic employees may return to work once 10 days have passed since the positive test and symptomatic employees may return after all the following are true, Farmer noted:

• At least 10 days have passed since symptoms first appeared.
• At least 24 hours have passed with no fever without fever-reducing medication.
• Other symptoms of COVID-19, such as loss of taste and smell, are improving. Such symptoms may persist for weeks or months and need not delay the end of isolation, she explained.

Action Steps

Arthur Silbergeld, an attorney with Stradling in Los Angeles, said that if an employee tests positive, has COVID-19 symptoms or was in close contact for 15 minutes over a 24-hour period with someone who has COVID-19, the employer should immediately take the following steps:

• Require the employee who has symptoms to quarantine for at least 10 days and not return until 24 hours have passed since a fever of 100.4 or higher has resolved without fever-reducing medication, symptoms have improved?and at least 10 days have passed since the symptoms first appeared.
• Notify co-workers who were exposed to the employee, if any, of the exposure and recommend that they be tested.
• If the employee tested positive but never developed symptoms, require the worker to quarantine for at least 10 days.
• If the employee was exposed to someone who had COVID-19, did not test positive and had no symptoms, require the employee to quarantine at least 10 days.
• If the worker is fully vaccinated—two weeks have gone by since the second of two vaccine doses or since the administration of the single-dose Johnson & Johnson vaccine—no quarantine is necessary. But Silbergeld said testing, wearing a mask and social distancing can be required.
• Determine if the employee and co-workers who were exposed are eligible for paid sick days, workers' compensation benefits or other paid time off.

Silbergeld noted that in California, the employer also must determine if there have been previous workplace cases and, if so, do the following:

• If there were three or more cases in the last 14 days, provide weekly testing to all employees and give notice to the local health department.
• If there were 20 or more cases in the prior 30 days, offer free testing twice weekly to all employees in the exposed workplace used by the employees who had or were exposed to COVID-19. In addition, the employer must pay for the time taken for testing, even if it occurs during nonworking hours, and work with the local health authorities.

"The Cal/OSHA [California Division of Occupational Safety and Health] emergency temporary standards also require the employer to develop a prevention plan," he said. This includes a system for:

• Communicating with all employees.
• Identifying and evaluating COVID-19 standards.
• Implementing procedures for reporting, investigating and responding to COVID-19 cases.
• Implementing mechanisms for physical distancing, face coverings, creating partitions and improving air circulation.

Silbergeld recommended that employers consider going beyond these guidelines. For example, if a fully vaccinated employee reports having been exposed to COVID-19, consider requiring that employee to quarantine or allowing the worker to voluntarily quarantine.