Commentary & Opinion

How to communicate when an employee tests positive for COVID-19

By Jon Hyman

Jun. 22, 2020

Positive COVID-19 tests are sadly the reality of 2020 and likely at least part of 2021.

Nationally, 2.23 million of us have tested positive for coronavirus. If your employees have been fortunate enough so far to avoid the virus, the odds are good that before this pandemic is over one or more of your employees will test positive.

Before we discuss the right way to communicate a potential workplace exposure to your employees, let’s explore the wrong way, via one of my favorite punching bags, the WWE.

Via Deadspin:

As “Monday Night Raw” was wrapping up last night, reports started to leak out that a member of WWE’’s developmental program had tested positive for COVID-19.… It’s hard to pinpoint which is the more galling aspect: that the talent and crew of WWE found out about the positive test the same way the rest of us did, through social media and the internet last night, or that everyone showed up to work thinking they were safe, or however close to that word they felt by working for WWE, when in fact they weren’t.

If one of your employees tests positive for COVID-19, your other employees deserve to hear the news from you, not from a Facebook post, a tweet, a local news reporter or otherwise. You just have to make sure you are communicating the news legally.
The ADA’s confidentiality rules still apply to these communications, and an employee’s positive coronavirus test is still a confidential medical record. This means that you cannot divulge to anyone else the identity of the employee(s) who tested positive. It does not mean, however, that you can’t (and shouldn’t) communicate to employees that they might have been in contact with someone who has tested positive (or is displaying symptoms consistent with COVID-19) and that they should be diligent about monitoring their own health for potential symptoms.
Your only limit is disclosing the identity of the corona-positive employee. Otherwise, you are free to make any communication you want.
And you should. Your employees will resent you if they learn of the diagnosis of their potential exposure from anyone but you. Moreover, you can flip the story around into one focused on everything you are doing to protect the health and safety of your employees.
Dear Employees:
It saddens us to inform you that one of your co-workers has tested positive for COVID-19. The law prevents us from telling you the identity of that co-worker, but we want to assure you that we will continue to support this employee as your co-worker heals from this virus, and we will welcome them back to join you at work once it is safe to do so.
We are doing everything within our ability and resources to keep you as safe and healthy as possible at work. Still, with many cases of COVID-19 transmitted before anyone knows they have been exposed, and with you only being at work for a fraction of you day, we cannot 100 percent guarantee the virus won’t enter our workplace.
We continue to require that you self-assess daily for your own potential COVID-19 symptoms (fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea). If you have any of these symptoms, please let us know, and do not return to work until you have received a negative COVID-19 test, or you are symptom-free for at least 72 hours and at least seven days have passed since your first symptoms.
We are also continuing to take the following steps to help ensure, as best as possible, your health and safety here at work:
  • Employees are required to wear masks or other facial coverings at all times while at work, unless you granted a specific exception (such as for safety, a medical reason, or because you are working alone in a closed office).
  • employees are required to maintain six feet of social distance from others at all times.
  • Employees must diligently wash their hands and otherwise use hand sanitizer (which we are providing in intervals around the workplace).
  • Employee must self-assess their own health before reporting to work, and no employee is permitted to come to work if they have any of the known symptoms of COVID-19.
  • Lunch room and other common areas are closed until further notice.
  • Each employee is responsible for cleaning their own work station at the end of each shift.
  • We are deep cleaning the entire workplace on a weekly basis.
Additionally, because of the unfortunate positive test, we had the facility deep cleaned and sanitized prior to anyone being allowed to reenter after we learned of the positive test.
Our commitment to your health and safety is our top priority. If you have any questions or concerns, please contact ______________. Our door is always open.
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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