What Should an Employer Do if One of Their Employees Tests Positive for COVID-19?
The emergence of the Omicron variant of COVID-19 has already resulted in rapidly escalating increases in COVID-19 positivity rates worldwide. Barely a month since the variant was first identified, roughly 56% of positive COVID-19 tests in the U.S. are attributable to Omicron, and that number is still growing. Further, Omicron has the ability to evade much of the immunity protections conferred by vaccination or through prior infection by a different COVID-19 strain, posing a greater risk of a breakthrough infection than with previous variants. Its ability to evade immunity protections combined with the fast pace in which it replicates is causing record COVID spikes across the U.S. at an unprecedented speed, putting a damper on holiday plans and a strain on employers struggling with staffing issues.
In the midst of writing this article, the CDC has updated its isolation and quarantine guidance for folks who have COVID-19 or who have been exposed to someone with COVID-19. Employers should take a moment to review the new CDC guidance, outlined below, to prepare themselves for how to handle workers who test positive for COVID-19 and/or have been exposed to someone with COVID-19. Omicron has changed the game- employers should prepare for when, not if, they need to isolate or quarantine employees.
CDC Updated Guidance for Isolation and Quarantine
On December 27, 2021, the CDC updated its guidance for isolation and quarantine in response to the Omicron surge.
Isolation
If an employee tests positive for COVID-19, regardless of vaccination status, the employee must:
Stay home for 5 days.
If they remain asymptomatic (no symptoms develop) or if symptoms are resolving after 5 days, they may leave isolation but must wear a mask for at least the next 5 days.
If they have a fever, they should not leave isolation until the fever resolves, even if longer than 5 days.
If an employee develops symptoms of COVID-19, they should remain at home until a negative test confirms symptoms are not attributable to COVID-19 or for 5 days of isolation plus 5 days of masking if symptoms are resolving, as stated above.
Quarantine
If an employee is exposed to someone who has tested positive for COVID-19:
If they are:
boosted, or
less than 6 months out from their 2nd dose of a mRNA vaccine (Pfizer, Moderna), or
less than 2 months out from a J&J vaccine,
Then they must:
Wear a mask around others for 10 days. Quarantine is not required.
Take a COVID-19 test on day 5 after exposure.
If symptoms develop or they test positive, stay home and follow the CDC’s isolation guidance above.
If they are:
unvaccinated, or
more than 6 months out from their 2nd dose of a mRNA vaccine (Pfizer, Moderna), or
more than 2 months out from a J&J vaccine,
Then they must:
Stay home for 5 days.
Take a COVID-19 test on day 5 after exposure.
If no symptoms develop and they don’t test positive, they may leave isolation after 5 days but must wear a mask for the next 5 days.
If symptoms develop or they test positive, stay home and follow the CDC’s isolation guidance above.
If the employee either tests positive or develops symptoms, they must begin to follow the applicable CDC guidance as of that date- meaning the isolation/quarantine clock “resets” to day 1. It is entirely possible for someone to quarantine after exposure, test positive on day 5, then need to remain in isolation for an additional 5+ days per the guidance for COVID-19 positive employees.
The CDC notes that symptoms like loss of taste and smell can persist for weeks or even months after recovery, but workers do not need to continue to isolate while these symptoms still exist.
COVID-19 Symptoms
These recommendations do not apply to employees who develop severe COVID-19 or are immunocompromised. See CDC.gov for guidance applicable to these situations.
The symptoms of COVID-19 may include any of the following:
fever or chills
cough
sore or scratchy throat
shortness of breath/difficulty breathing
fatigue
muscle or body aches
headache
new loss of taste or smell
congestion or runny nose
nausea or vomiting
diarrhea
OSHA Emergency Temporary Standard re: COVID-19 Vaccination & Testing
OSHA’s Emergency Temporary Standard for COVID-19 vaccination and testing applicable to private employers with 100+ employees has recently been reinstated by the Sixth Circuit Court of Appeals. Employers subject to this standard are required to do the following:
Develop, implement, and enforce a mandatory vaccination policy, OR
Establish, implement, and enforce a policy allowing employees to either get vaccinated or undergo weekly COVID-19 testing, at their own expense, and wear a mask at all times in the workplace.
-AND-
Obtain and maintain vaccination records for all employees in the workplace, including retention of acceptable proof of vaccination records and maintaining a roster of each employee’s vaccination status;
Provide employees with reasonable time, including up to 4 hours of paid time to receive each primary vaccination dose and reasonable time and paid sick leave to recover from any side effects experienced;
Ensure each employee not fully vaccinated is tested for COVID-19 at least weekly;
Require employees to provide prompt notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
Immediately remove any employee from the workplace, regardless of vaccination status, who has received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return-to-work criteria are met;
Ensure that every employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances;
Provide each employee with information about: the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document Key Things to Know About COVID-19 Vaccines; protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false statements or documentation;
Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization;
Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.
Employers are required to comply with most provisions by January 10, 2022 and must comply with the testing requirement by February 9, 2022.
Additional information on the ETS, COVID-19 laws, regulations, and enforcement policies, compliance assistance materials, and information on worker’s rights, including how/when to file a safety and health or whistleblower complaint, is available at www.osha.gov/coronavirus.
Prioritize Employee Health
When it comes to COVID-19 infections and exposures, it’s a good rule of thumb for employers to err on the side of being overly cautious. During these trying times, workplace health and safety, including the impact to employees’ mental health, should be an employer’s first priority. Business owners are encouraged to consult with a trusted employment law attorney if they have questions about their COVID-19 practices and/or assistance in drafting related employment policies.