REQUIRED REPORTING
When an employee tests positive for COVID-19, what does a business have to do?
When an employee tests positive for COVID-19, what are businesses required to report, if anything?
As it turns out, the law doesn't require much from employers.
There are no local, state or federal regulations explicitly requiring employers notify health officials when an employee is sick. They also don't have to warn other employees or customers who might have come into contact with the affected individual, although it is recommended.
The Occupational Safety and Health Administration has rules in place triggering reporting under some circumstances, but only requires a report when it's clear exposure to COVID19 happened at work. The agency lets employers determine whether a case is “work-related.”
Businesses following guidelines from the Centers for Disease Control and Prevention are more likely to shield themselves from liability if something goes wrong, said attorney Charlie Plumb.
“Compliance with those guidelines is the best way for an employer to defend itself if someone later claims they acted inappropriately or unlawfully,” said Plumb, who represents employers for Oklahoma City law firm McAfee & Taft.
Plumb expects to see the issue reach the civil court system. Once it does, a new state law would shield employers who follow guidelines and are in compliance with COVID- 19 standards whenever the exposure happened.
Each level of government has issued guidelines for what employers should do despite a lack of rules. For example, a proclamation signed by Oklahoma City Mayor David Holt this month encourages businesses follow recommendations developed by health officials.
The State Department of Health encourages employers to notify workers who may have been exposed to someone who tests positive
for C OVID -19. That notification must be balanced with health privacy laws that prevent publicly naming the sick individual.
Plumb said ba lanci ng privacy and safety is like walking a tightrope. Employers can alert people who were exposed without naming the individual who tested positive.
“You can do that sometimes without ever identifying the individual who's actually tested positive ,” he said .“Employees may put two and two together and figure out who that is, but I don't consider that a breach of confidentiality.”
He also urges companies call their local health authority, who may want to initiate contact tracing.
“It's very unlikely that an employer is going to be liable or criticized for violating confidentiality if they're doing exactly what the Department of Health instructed them to do,” Plumb said. “I would rather, as an employer, deal with someone accusing me of somehow violating confidentiality than deal with a huge outbreak of COVID- 19 among my employees and their families.”
Some industries are collectively urging companies go beyond what's mandatory in the name of safety. The Oklahoma Restaurant Association, which represents hospitality businesses in Oklahoma' s secondlargest employment sector, issued a pledge for members to follow.
When followed, t hat pledge keeps si ck employees at home and asks employers to notify people who were exposed, which is defined in the pledge as being within six feet of an infected individual for more than 15 minutes without a mask.
“We're doing everything we can to educate them to be better away from work. We're doing everything that pledge says, to wear am ask, (check temperatures ), all the things the things you' re supposed to do that the CDC recom mends ,” said Kurt Fleischfresser, director of operations at Vast and chair of the ORA.