What Are Your Responsibilities When an Employee Tests Positive for COVID-19?

Although the Wisconsin Supreme Court has invalidated Governor Evers’ Safer at Home Order, legislation and/or additional orders will likely fill the vacuum.  In any event, COVID-19 will remain a threat in the workplace.  As an employer, you may have questions on what your responsibilities are if one of your employees tests positive for COVID-19. Can you mandate company-wide testing?  Do employees who may have been in close proximity to the infected employee need to self-quarantine?

The guidance from a number of government agencies including OSHA, CDC, EEOC, and WEDC is consistent in recommending that when an employee comes to work either infected with COVID-19 or exhibiting symptoms of COVID-19, that employee should be sent home immediately.  However, there is no general requirement that other employees who may have been exposed to the infected worker either self-quarantine or get tested before they can continue to work.  The EEOC’s guidance states that employers may test employees, including asking about symptoms, taking their temperature, and conducting actual tests for the virus, where the need to test is job-related and consistent with business necessity.  The following questions and answers address various parts of this multi-faceted issue.

What should an employer do when an employee shows up at work with COVID-19 symptoms?

• Immediately send the employee home.
• Employers need to be careful to protect the confidential medical information pertaining to employees.  The employer should not disclose the identity of an employee who tested positive for COVID-19 or has COVID-19 symptoms to other employees, unless the infected employee freely consents to the release of that information.

What should that employee do?

• Contact their healthcare provider.  It’s up to the healthcare provider to diagnose, recommend testing, and to treat the employee.  If the employee is diagnosed with COVID-19 or tests positive for COVID-19, the employee should inform their employer.

What should the employer require of other employees who worked in close proximity to an employee who was diagnosed or tested positive for COVID-19?

• There is no guidance requiring that other employees who were in proximity to the infected employee self-quarantine or get tested.  These employees remain subject to the general guidance in the work place, which is that any employee exhibiting COVID-19 symptoms remain at home and contact their healthcare provider.
• At all times, the employer should be enabling and enforcing social distancing and other preventative measures in the work place.  Specific guidance for various industries and businesses can be found on the WEDC site here and the OSHA site here.

Can an employer require that its employees get tested for COVID-19?

• The EEOC has stopped short of saying that employers are required to test employees for COVID-19.  Instead, its guidance provides that employers may require testing where “testing is job-related and consistent with business necessity.”  The EEOC states further that testing is justified where there is a threat to the safety of employees, and that COVID-19 does constitute such a threat.  Testing includes screening employees for COVID-19 symptoms such as fever, chills, cough, shortness of breath, or sore throat, taking the temperature of employees, or conducting swabbing tests for detection of the virus.
• The results of such inquiries should be kept confidential, like any other medical information regarding an employee.

When can an employee who has tested positive for COVID-19 or been diagnosed as having COVID-19 return to work?

• If an employee has not had a test to determine if he or she is still contagious, they can return to work after these three things have happened:
  • no fever for at least 72 hours (that is three full days of no fever without the use of medicine that reduces fevers);
  • other symptoms have improved (for example, cough or shortness of breath have improved); and
  • at least 10 days have passed since symptoms first appeared.

• If an employee has had a test to determine if he or she is  still contagious, they can return to work after these three things have happened:
  • no fever (without the use of medicine that reduces fevers);
  • other symptoms have improved (for example, cough or shortness of breath have improved); and
  • the employee has received two negative tests in a row, at least 24 hours apart.