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One of the first steps employers should take is to notify their local public health agency regarding next steps. “Different agencies have been taking different approaches to mitigation and the advice has been changing rapidly,” said Rachel Conn, a labor and employment attorney at Nixon Peabody.
The advice of the local health authorities may vary, for instance, depending on whether the affected site is located in an area where there has been a coronavirus outbreak.
“Employers should [also] notify their employees and any customers or vendors that may have potentially been exposed to the employee that has tested positive,” Conn said.
But determining who exactly is at risk of infection as a result of exposure can be a matter of judgment, Conn said.
The Centers for Disease Control and Prevention has said those at highest risk of exposure are those who the infected employee either coughed or sneezed on or who were within six feet of the person for a prolonged period.
But there’s a lot of mobility within buildings, and a company needs to determine the areas where the employee most frequently worked and went to meetings. So for instance, the company might figure out who shared spaces with the infected employee and who likely used the same restroom, Conn said. Or the employer may choose to alert employees who work on the floors where the infected person was most typically.
Of course, trying to limit the notification to some employees but not others may not work. “Employers have to be cognizant that the information will get out to other folks,” Conn said.
An employer may decide to notify all employees in the building where the infected person worked if they feel confident that person had not been to any of the company’s other offices. “But if that’s unknown, at the risk of creating panic, the more [employees you notify] the better,” said Dan Stern, an attorney who represents employers in labor and employment matters for the law firm Dykema.
In any case, notifying employees and others that someone they’ve been in contact with has tested positive for coronavirus must maintain the infected person’s privacy and confidentiality — no names or other identifying details should be given.
“Employers have to balance the interest of sick employees with the interests of other employees and the company’s interest,” said John Bremen, managing director of HR consulting firm Willis Towers Watson.
Given the difficulties of getting tested and delays in getting results, many employees still may not be sure they have COVID-19 even if they’re symptomatic. Or they may know they were in direct contact with someone who tested positive for it. In that case, an employer may tell coworkers that a colleague might have been exposed but that there is no confirmation that that person has the virus, Conn said.
Another potential scenario: The local government decides to shutter an office building with several employers in it because of one or more reported cases of COVID-19.
In that case, Conn said, “employees will still want to know what their exposure was.” So employers should disclose that information, again without revealing names or other identifying details.
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