Las Vegas Review-Journal (Sunday)
Legal responsibilities
Health experts discuss protocols during pandemic
Two experts answer questions on how much information businesses are required to share
It’s unclear how many Las Vegas hospitality workers have tested positive for COVID-19 since hotel-casinos were allowed to reopen June 4.
Despite infections triggering the closure of venues and at least one casino worker death, hotel-casinos aren’t required to share the number of employees who have tested positive.
The Review-Journal reached out to Dr. Fermin Leguen, acting chief health officer for the Southern Nevada Health District; and Ellen Bronchetti, a partner at international law firm McDermott Will & Emery with a focus on employment and labor issues; to find out how much information businesses are required to share, with the public and employees, during the pandemic. The interviews have been edited for length and clarity.
Review-Journal: Are companies required to share any information regarding the positive cases among staff with their employees or customers?
Bronchetti: The Centers for Disease Control and Prevention recommends anyone who has had close contact (6 feet or closer to an infected person for at least 15 minutes) should be notified if there has been possible infection. We generally recommend employers examine who could have been exposed to this individual per CDC guidelines — that includes customers, third parties, employees, etc. — and then take appropriate action based on what the exposure is.
If an employee has had exposure to tens and hundreds of people, most of the guidance we have given employers is they may wish to consider a public disclosure about the exposure so customers, clients, etc. are not unknowingly exposed. Employers should do a case-by-case assessment to determine what measures are appropriate.
Leguen: The health district is working closely with our resort properties to quickly identify cases among guests or employees and provide isolation instructions and to identify and recommend quarantine for their contacts. This partnership is crucial in interrupting the transmission.
The Health District does not require businesses to notify staff members about who among them became a COVID-19 positive case, but they must share information regarding potential exposure and place those identified as close contacts in home quarantine. The Health District will notify employees who are at risk or who have been exposed to COVID-19 or other illnesses.
If the health district determines that it cannot identify staff members or customers who were potentially exposed to any illness, a public notification will be conducted, as has been done in the past.
Are COVID-19 cases among employees considered work-related? If so, what sort of compensation are workers entitled to?
Bronchetti: We’re already seeing litigation where employees are alleging that an employer failed to take reasonable measures to keep a workplace safe. Early attempts by lawyers to get a quick dismissal of these cases so far have been unsuccessful, and so I think the litigation is certainly going to pick up as things continue to develop. Other litigation trends resulting from the COVID-19 pandemic are claims of disability discrimination and violation of the FMLA (Family and Medical Leave Act) and related state laws.
How much information can employers share with staff members regarding the positive cases?
Bronchetti: When you inform employees that a co-worker has tested positive, an employer should make sure to follow state and federal laws related to the privacy in mind (for example confidentiality is required by the Americans with Disabilities Act) and should keep the identity of the coworker who tested positive anonymous.
The best way to do it is you try to keep the identity of the employee as anonymous as possible. You should communicate to employees along the lines of: “We are aware that there has been exposure. We have determined that you may have been in close contact with this person.”
How do hotel-casinos identify COVID-19 among their staff?
Leguen: Businesses, including gaming properties, can only identify COVID-19 through the services of a laboratory or medical provider. The laboratory or medical provider reports newly diagnosed COVID-19 cases to the Southern Nevada Health District, or the State of Nevada’s Division of Public and Behavioral Health if it is from out-ofstate entities.
Hotel-casinos can voluntarily notify COVID-19 cases to the health district, but it is not required since there is already a mechanism in place to account for that information.
What roles do companies play in contact tracing?
Leguen: As part of any contact investigation, the health district would request information from the employer so that individuals at risk can be identified and notified of the potential exposure.
If companies are aware of an employee who has tested positive, they can support COVID-19 control measures by making sure the individual goes home for isolation. If they identify any close contacts among coworkers to that positive case, they can immediately assist with health district contact tracing efforts by sending them home to quarantine.