Q: Two people in our five-person office have tested positive for the novel coronavirus. Our boss found out over the weekend, but didn’t tell us until we found out from one of the infected workers and confronted the boss. We have our own offices, we wear masks, and we eat in our own spaces. We share a copy room and workrooms. We are angry at the boss for not telling us about the positive cases and not letting us work from home. Isn’t our employer required to notify us when someone at work tests positive for the coronavirus?
A: Employers in this pandemic have to walk a fine line between keeping employees informed and causing needless anxiety, according to Susan Wiltsie, an employment law partner with Hunton Andrews Kurth who specializes in OSHA compliance. Centers for Disease Control and Prevention guidelines recommend notifying individuals who have had “close contact” with a coronavirus-positive person — defined as being within 6 feet for at least 15 minutes while the person was considered contagious (within 48 hours before symptom onset or, if no symptoms occur, 48 hours before the test was taken).
Under those guidelines, an infected person who has had no recent contact or interactions with co-workers may not present a risk that requires notification, and notifying the entire workforce in that case may cause more stress than benefit, Wiltsie notes.
That said, your anger is understandable, especially if you have or live with someone who has a high-risk medical condition. Anecdotal reports from people who have fallen ill despite taking thorough precautions, combined with ever-changing information on how the virus spreads, plus variables outside our personal control such as others’ behavior and environmental sanitation — and, most troubling, reports of possible political interference with our most trusted source of public health information, the CDC itself — make it reasonable to want to take extra precautions.
Employers have a duty to provide a safe workplace. While reasonable minds may differ on the exact measures, an employer that fails to show it is making every reasonable effort to keep workers safe is going to face internal turmoil and possibly legal repercussions. Several meatpacking plants have been fined recently over lax coronavirus prevention and notification measures. OSHA itself is “receiving an astounding number of complaints” about employers, says Wiltsie, and is facing criticism and lawsuits arising from its enforcement of worker safety laws during the pandemic.
So even though employers might be inclined to hold off on announcing COVID-19 breakouts to avoid causing panic or stigmatizing infected workers, a certain amount of transparency might be in order to retain their workers’ trust. Wiltsie recommends the following approach when employers learn of a case of COVID-19 among their workers:
1. Perform contact tracing to determine who in the workplace may have come into direct contact with the infected person.
2. Privately contact those individuals at risk, without disclosing the identity of the infected person (confidentiality is required by the Americans With Disabilities Act).
3. Make a general announcement to the rest of the workforce that a case of novel coronavirus has been confirmed, that people believed to be at risk of exposure have been notified, and that anyone who has not already been personally contacted is not believed to be at risk.
That approach, according to Wiltsie, “threads the needle so that you don’t have unnecessary stress on people who are not at risk.”
And, of course, time is of the essence, before the virus — and the news about it — has a chance to spread.
Pro tip: If you have a medical condition and are concerned about coronavirus exposure at work, consider making a doctor-endorsed plea under the ADA for additional protections, such as remote work or an isolated workspace. If your employer is willfully refusing to comply with state mandates on COVID-19 protection, consider contacting your attorney general’s office or public health department. Also, retaliating against workers who raise safety concerns is illegal.