Much of a company's notification procedure will be shaped by state and federal laws, some of which are changing quickly.
The White House’s recent email to staffers advising them what to do if they experience COVID-19 symptoms—apparently the first such notice they’ve received—raises a related question for millions of employers: What do we tell employees if a fellow worker has COVID-19?
While Trump tweeted his diagnosis to the world early on Oct. 2, most employers will face a different environment. Much of it will be shaped by state and federal laws, some of which are changing quickly.
The first steps are the clearest, based on guidance from the Centers of Disease Control and Prevention, federal government agencies, and state governments. If an employer finds that an employee has COVID-19, tell that employee to go home immediately and quarantine, duration to be determined. Then clean areas of the workplace where the employee has been in the previous seven days.
Obvious question: How does an employer know if an employee has the disease? Mandatory testing is one option. The Equal Employment Opportunity Commission affirms that this does not violate the Americans with Disabilities Act. But without mandatory testing, employees are mostly on the honor system. It’s okay to ask employees directly if they have or have had COVID-19, and it’s okay to require them to tell HR if they have symptoms. But it’s not okay to ask employees if any of their family members have COVID-19 or its symptoms; that would violate the Genetic Information Nondiscrimination Act, says the EEOC.
After that things get still more complicated. The employer should notify employees, but the employer’s location may determine how quickly it must be done. Under a Virginia law that took effect in July, an employer must notify “employees who may have been exposed” and must do so within 24 hours of becoming aware of the possible exposure. A California law that takes effect January 1 will require employers to give “written notice” to employees, employers of subcontracted employees, and representatives of employees such as unions and attorneys, within one business day of “potential exposure” to the coronavirus.
Which raises another complication: Who was potentially exposed? In a major corporation it may not make sense to tell all employees worldwide that an employee in one office or other facility tested positive. But all those who were potentially exposed must be notified—without disclosing the identity of the worker who tested positive. As a practical matter that may be nearly impossible. If Bill stops showing up and workers in hazmat suits whom you’ve never seen before are swabbing down his workspace, per CDC guidelines, no one will doubt why. Still, employers must do everything they can to avoid divulging Bill’s identity, even if Bill chooses to identify himself.
Legal requirements continue to change. In addition to Virginia and California, Oregon has also adopted temporary rules regulating employers during the pandemic, and more states will follow. But the basic principles for notifying employees of possible exposure to the coronavirus are simple. Notify them as fast as you can, don’t disclose personally identifiable medical information, and realize that your actions will be governed by laws and regulations far more than by HR policy.
