When an Employee Who Tested Positive for COVID-19 Returns to Work

April 15, 2020Alerts

At some point, if they haven’t already, employees who went into isolation after testing positive for COVID-19 will be seeking to return to work or will be recalled from layoff. Before welcoming an employee back to the workplace, employers have the right to ask for a certificate of fitness from their healthcare provider, or a form from a local clinic, confirming that they are no longer shedding virus, i.e. considered contagious.

What does that mean in a practical sense for the workplace and the employer? It’s important, first, to understand the criteria used by health care providers when providing a certificate of fitness. The CDC has issued interim guidance on when to discontinue isolation for persons with COVID-19 outside of health care settings. This guidance identifies two strategies, depending on the availability of and access to testing supplies. The first is an observational “time-since-illness-onset” and “time-since-recovery” strategy; the second is a test-based strategy.

CDC Criteria for Ending Isolation

The time-since-illness-onset and time-since-recovery strategy for releasing persons with COVID-19 with symptoms from isolation (non-test-based strategy) requires:

  • At least three days (72 hours) have passed since recovery, which is defined as resolution of fever without the use of fever reducing medications.
    AND
  • Improvement in respiratory symptoms (e.g., cough, shortness of breath)
    AND
  • At least seven days have passed since symptoms first appeared.

The testing-based strategy for those who have COVID-19 with symptoms requires:

  • Resolution of fever without the use of fever-reducing medications
    AND
  • Improvement in respiratory symptoms (e.g., cough, shortness of breath
    AND
  • Two consecutive negative results from FDA-authorized nasal swab tests – at least 24 hours apart.

Persons with laboratory-confirmed COVID-19 who have not had any symptoms may discontinue isolation when at least seven days have passed since the date of their first positive COVID-19 diagnostic test and they have had no subsequent illness, provided they remain asymptomatic. For three days following discontinuation of isolation, these persons should continue to limit contact (stay six feet away from others) and limit potential of dispersal of respiratory secretions by wearing a covering for their nose and mouth whenever they are in settings where other persons are present. In community settings, this covering may be a barrier mask, such as a bandana, scarf or cloth mask. The guidance also notes that individuals with compromised immune systems may be infectious longer than others (viral shedding) after recovery and should discuss that with their healthcare providers.

Workplace Context

Importantly, the CDC guidance recommends that any decision to allow an individual who has tested positive for COVID-19 to end isolation must be made in the context of community circumstances and the nature of the workplace into which the employee is returning.  For example, employers with workers who have tested positive for, or been exposed to COVID-19 and are now returning to work in health care or critical infrastructure businesses where introduction of COVID-19 could cause a major disruption are within their rights to apply more stringent criteria, i.e. a higher recovery threshold to prevent transmission, for returning workers. The CDC has issued separate guidance, for example, on how and when to allow health care workers to return to work.

Employers’ worker reentry precautions will differ depending on the circumstances of each individual workplace. Employers need to evaluate whether the release from isolation criteria suggested for health care providers provides sufficient protections for the return of COVID-19 employees, or whether additional protective measures are required. This should be done in compliance with the OSHA Guidance on maintaining a safe workplace during the COVID-19 epidemic as well as the Regulations and Guidance provided by the Equal Employment Opportunity Commission. Employers need to consider whether current social distancing, use of masks and sanitation are sufficient as employees who have tested positive for, or been exposed to COVID-19, return to work.

Other Issues to Consider

There are a number of other issues to which employers need to be sensitive when employees who have tested positive for, or been exposed to COVID-19 return. For example, although simply contracting COVID-19 has not been determined to be a disability, the ADA protections afforded individuals with “perceived” disabilities do apply. While there is no duty to accommodate a perceived disability, an employer cannot discriminate against an individual based on a perceived disability. In addition, privacy protections attach to medical information provided by employees and must be adhered to.

For more information or assistance with workplace issues related to, or independent of, the COVID-19 pandemic, contact Randall Schauer at 610.458.4967 or [email protected], or any member of Fox Rothschild’s Labor & Employment Department.

Additional Information