Notifying Employees About a Coworker’s COVID-19 Infection

October 13, 2020

We are an employer with approximately 400 employees, and we are aware a couple of our workers have tested positive for COVID-19. Are we required to notify all employees about the coworkers who have tested positive for the virus?

The short answer is a qualified yes. You should notify your employees another worker has tested positive for COVID-19 if they have had contact with the infected worker.

For the last several months, all facets of society have tried to navigate the COVID-19 pandemic and all it entails. From locking down, sheltering in place, social distancing, virtual learning, and sharing bandwidth, to business closings, layoffs, and reduced capacity, everyone has been affected. Employers are no different. There are myriad different regulations, guidelines, and orders to which businesses must adhere. When it comes to an employee’s COVID-19 infection, there’s no shortage of hurdles to leap. The size and nature of the business will control the response.

If the business is relatively small, and all the workers are in one office, it’s more likely the infected individual has had at least some contact with coworkers. The contact could be face-to-face or sharing a copy machine. In those cases, you should inform all of your workers.

On the other hand, if a business is large and has multiple offices (or at least multiple floors in a building), there isn’t a requirement that all workers be notified. If a worker in building A has been infected but never goes into building B, there would be no necessity to inform the workers in building B. As with all areas of the law, it really comes down to a case-by-case analysis. To that end, you should also ensure you have a thorough contact tracing policy in place so you can know with whom the infected employee has had some contact.

Government agencies including the Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC), the Equal Employment Opportunity Commission (EEOC), and the Wisconsin Economic Development Corporation (WEDC) have all been consistent in recommending an employee should be sent home immediately when she comes to work either infected with COVID-19 or exhibiting symptoms consistent with COVID-19. The EEOC’s guidance states you may test your 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.

Consistent with the guidelines, it’s paramount that you notify your workforce of exposure. Such notification must be done without identifying the individual to protect her privacy rights. Although an infected individual may authorize you to provide her personal information, however, you cannot force her to divulge her health information or retaliate against her for choosing not to provide it.

If you have an employee who has tested positive for COVID-19, according to the EEOC, you can require her to provide a note from her healthcare provider to return to work. While a business can facilitate and/or require an employee to get a test to see if she has an active viral infection (viral test), however, you cannot require her to get an antibody test to see if she had the virus in the past.

In addition, if you have an employee who has tested positive for COVID-19, you can store that information in her employment file, but as with all medical information, it must be stored separately from her personnel file and kept confidential.

Notifying other employees of exposure to COVID-19 will not only help stop its spread in your workplace but also help increase productivity. For more information about how to deal with COVID-19 in your work-place, the EEOC has a FAQ section on its website.

This article, slightly modified to note recent updates, was featured in the October issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.