The figures related to the COVID-19 pandemic have become grim in the United States. As of March 30, 2020, at least 160,700 individuals have tested positive for the virus, with approximately 6,800 of those cases in California. As the number of positive COVID-19 cases continue to rise, we anticipate that many agencies will unfortunately be confronted with news that one of their own employees has contracted the disease, and will need to face the challenges that come with notifying other employees about their potential exposure. LCW can assist you with navigating these difficult challenges and offers the following guidance on what to do if you become aware that an employee (other another individual close to the agency) tests positive for COVID-19.
Inform Fellow Employees Of Their Possible Exposure
Workplace safety and health regulations in California require employers to protect workers exposed to airborne infectious diseases such as COVID-19. Therefore, if your agency discovers that an employee (or other another individual that has been in close contact with agency’s employees such as an independent contractor) has tested positive for COVID-19, your agency may notify affected employees in a way that does not reveal the personal health-related information of the individual who has tested positive for COVID-19.
Although providing affected employees in this manner is consistent with recent guidance issued by the Department of Fair Employment and Housing (“DFEH”) (the state administrative agency that largely enforces California’s anti-discrimination laws including the Fair Employment and Housing Act (“FEHA”)), agencies should be particularly cautious when communicating with employees about a potential exposure, and take care to not violate California’s Confidentiality of Medical Information Act (“CMIA”). The CMIA requires employers to protect the privacy and security of any medical information they receive about their employees. Under the CMIA, “medical information” means any “individually identifiable” information regarding the employee’s medical history, mental or physical condition, or treatment. “Individually identifiable” means that the medical information includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the individual’s name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other publicly available information, reveals the individual’s identity. An employer that violates the CMIA may be liable for compensatory damages, punitive damages not to exceed three thousand dollars ($3,000), attorneys’ fees not to exceed one thousand dollars ($1,000), and the costs of litigation.
Agencies that become aware that their employees have been exposed to an individual who has tested positive for COVID-19 should develop narrowly tailored communications that balance the safety interests of employees that have possible been exposed with the privacy rights of the individual who has tested positive for COVID-19. Any communication to employees about their possible exposure should never identify any specific individual by name nor should the communication include information that would enable the reader to identify that person (i.e. the communication should not identify a specific work location if there is only one known employee that works in that location). Rather, agencies should draft a notice that provides affected individuals with enough information to have a meaningful discussion with a healthcare provider and take the appropriate risk mitigating steps (i.e. increased social distancing, hand washing, self-monitoring of symptoms, etc.). In their notice to affected employees, agencies should also consider advising that they will follow the Centers for Disease Controls (“CDC”) best practices for cleaning and disinfection. Agencies might also refer affected employees to their county’s public health department’s website for guidance on monitoring for symptoms.
LCW has available to its clients a complimentary template notice for advising affected employees of their potential exposure which LCW can tailor specifically to the needs of your agency. This template notice (and a variety of other template documents related to COVID-19) can be requested through this link: https://www.lcwlegal.com/complimentary-templates-for-coronavirus-covid-19-related-policies
Clean and Disinfect Areas Used By The Employee Per CDC Guidelines
In addition to providing notice of potential exposure to affected employees, agencies should consider cleaning and disinfecting areas the individual who has tested positive for COVID-19 has come into contact with consistent with CDC guidelines which are available at: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html
Reinforce Health Hygiene Practices
The CDC also recommends that employers that become aware of an employee who has tested positive for COVID-19 to support respiratory etiquette and hand hygiene for employees, customers, and worksite visitor and includes a number of suggestions available at: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
Monitor and Plan for Absenteeism
Guidance from the CDC, OSHA, and local public health departments all discourage employees from attending work if they are sick or exhibiting symptoms of COVID-19. Agencies should therefore prepare for the possibility that some employees may be absent after receiving notice about a possible exposure to COVID-19. For examples, agencies should plan for alternative work coverage for the division or department with affected employees. Agencies should also ensure that their attendance, sick leave policies, and policies related to the Families First Coronavirus Response Act (“FFCRA”) are updated. LCW has available to its clients complimentary template FFCRA policies and forms which it can tailor specifically to the needs of your agency.