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When an employee advises their employer that they have been diagnosed with COVID-19, management must act quickly in order to protect staff and customers, while wading through contradictory rules and regulations on disclosure and confidentiality.
Compliance Minefield
Under the federal Occupational Safety and Health Act (OSHA), businesses are required to disclose all the information needed to ensure a safe work environment.
They must also comply with confidentiality requirements laid down by the Americans with Disabilities Act (ADA); this prevents them from sharing health-related information, while not running foul of the Equal Employment Opportunity Commission (EEOC).
Additional constraints come from the Health Insurance Portability and Accountability Act (HIPAA), regulating the use and disclosure of protected health information by covered entities and business associates. Above all, the constantly evolving recommendations issued by the Centers for Disease Control and Prevention (CDC) must be followed in order to flatten the curve, keeping infection rates as low as possible.
However, the rapid spread of this disease is prompting a slew of new pandemic recommendations and safety tips, particularly for front-line workers.
As the coronavirus surges nationwide, all of these entities (and many others at the state and local levels) are issuing a steady stream of directives designed to protect people, communities, companies and jobs.
Notify Sooner Rather Than Later
If businesses do not keep pace with these constant changes, they risk being held liable for breaching health and safety laws.
This means that notification – to the appropriate authorities, employees and customers – is by far the best option, although not necessarily mandatory.
Once an employee is diagnosed, employers must discover when they were last in the workplace.
If this falls within the accepted two-week incubation window, everyone who might have come within six feet of the infected employee should be notified of their potential exposure to COVID-19.
No names may be mentioned, merely advising fellow-workers that they might have been close to someone testing positive for the virus, and giving the date when the person was last on the premises.
This sets a more reassuring timeframe for workers to screen themselves carefully for symptoms.
Avoiding Possible Lawsuits
Although still a fuzzy area, employees might be entitled to worker’s compensation if they are not properly alerted, claiming that they caught the virus at work.
Furthermore, businesses could be fined by federal government agencies, and lawsuits might be filed for negligence and failure to provide a safe working environment.
So far, no clear guidelines have been issued on exactly when companies are required to advise the authorities (or which of them) that a worker has developed COVID-19.
The most sensible approach at the moment seems to be reporting such cases to OSHA as “recordable illnesses”, if there is any chance that other employees have been exposed when working with diagnosed victims.
OSHA Alerts
Without introducing any new legal obligations, recent OSHA alerts offer guidance on how to stop infections from spreading: employers should draw up infectious disease response plans and implement basic prevention measures, while sick workers should be isolated immediately.
These alerts list ways of protecting workers in the pharmacy and retail sectors, as well as delivery people, with instructions on cleaning surfaces and increasing the use of drive-through windows.
The latest alert for the manufacturing sector suggests that workers should wear masks, together with proper hygiene and social distancing.
In fact, OSHA itself has directed its field offices to adopt a ‘judicious’ approach to scheduling in-person worksite inspections investigating safety complaints or reports of virus-like illnesses.
EEOC guidance
The EEOC has also issued more detailed guidance on how employers should act during the pandemic while remaining compliant with employment law, including temporary accommodation, screening and the use of personal protective equipment (PPE).
Again, a fine line is drawn between ensuring healthy workplaces by keeping out workers with “medical conditions posing direct threats to health or safety” and “disparate treatment based on protected characteristics.”
Although employees may be required to wear PPE and follow practices such as regular hand washing, employers should be willing to discuss special requirements related to disabilities and religious beliefs.
The rules on workplace harassment and discrimination remain unchanged as businesses start to emerge from lockdown.
Caring for CUSTOMERS AND CLIENTS
On the customer side of the counter, there seem to be no federal or state laws forcing businesses to disclose in-house outbreaks of COVID-19.
However, there is a possibility that companies might be vulnerable to subsequent negligence claims.
Probably the best sources of advice here would be local officials, familiar with what would be appropriate in specific situations.
For instance, one county advises employers to warn anyone spending more than ten minutes within six feet of symptomatic employees at work within 48 hours of developing symptoms.
If possible, businesses should track down and warn customers who might have been exposed to diagnosed workers.
Although almost impossible individually, this can be handled effectively through on-site posters, public announcements, and information on social media, allowing customers to make their own well-informed decisions.
Addressing a difficult situation in a transparent way like this also helps offset negative aspects, as well-placed news stories of clean-up efforts and new protective measures restore temporarily tarnished corporate images.
Looking ahead
Although no one can predict what lies ahead, there is little doubt that a wave of COVID-19 class actions is building up for the post-coronavirus world.
Complaints of exposure to the virus are already being prepared, together with alleged finance and security fraud related to corporate failures to ensure adequate COVID-19 disclosure.
However, the enclosed contexts of cruise ships boarding newcomers (despite knowing that other passengers had COVID-19 symptoms) would be harder to reproduce in lawsuits filed within less constrictive settings.
Right now, there seems little doubt that immediate notification and early public disclosure might well outweigh the temporary downside of closed premises and blocked revenue streams.
With long memories, consumers also have loud voices through social media networks, for easier identification as potential claimants.
As a result, honesty and transparency could well pay unexpected dividends over the longer term, through invisible benefits like avoided fines and denied damages in class actions.