What Happens if My Employee Calls Out Sick? – Bergen Parkinson Attorneys

By Britton Ryan Garon

If you are an employer open for business during this pandemic crisis, much of your focus is on keeping your employees safe and healthy, while maintaining your business and providing essential services to your clients. If one of your employees calls out sick, what should you do? Who should be notified?

Several state and federal agencies provide guidance and set regulation during this crisis. The Centers for Disease Control and Prevention (CDC) and the World Health Organization (WHO) are the definitive sources for information on the pandemic, its spread, and recommended public response. The CDC has created a risk assessment for the general public and recommendations on precautions to take based on an individual’s risk level.

If a person has had close contact (defined as within 6 feet for 30 or more minutes) with someone who has tested positive for COVID-19, the CDC recommends that person be quarantined for 14 days and have his or her health monitored. Family and others who have had contact with this potentially exposed person, may still leave their home as long as the potentially exposed individual remains asymptomatic and does not show signs of illness. Without such direct contact with a positive person, the Maine CDC does not require quarantine but does recommend monitoring the person’s health for symptoms of illness. For anyone who has tested positive, is experiencing symptoms compatible with COVID-19, or is awaiting test results, the CDC recommends self-isolation until 7 days has passed since the symptoms first appeared and at least 3 days have passed without experiencing fever or respiratory problems.

When an employee calls out sick, it is important to get details about their status.

Are they personally experiencing symptoms that would necessitate self-isolation, pursuant to the CDC guidelines?
Have they had direct contact with someone confirmed positive and self-quarantining for the 14-day period or, has the employee actually tested positive?

If an employee informs you he or she has tested positive or is presumed to be infected with COVID-19, you should obtain a list of people with whom he or she has had contact in the previous 14 days. You should promptly notify all colleagues or clients who have had contact with the employee regarding their potential exposure to the virus. Because of various health care privacy laws, you must not disclose the name of the sick employee or any more specific detail than is necessary to inform others adequately and accurately of the concern. You should send home any employee who was in direct contact with ill employee to self-quarantine for 14 days, with instructions to monitor their health for any symptoms. Areas of the office which the ill employee has used should be closed off until you can perform a deep cleaning and disinfection of the area. Given the seriousness and impact of this pandemic, agencies recommend that everyone err on the side of caution and treat all suspected or possible cases of contamination as confirmed COVID-19 cases for purposes of notification and isolation. This makes good sense from the scientific and medical community and, consequently, it makes good legal sense as well.

Although employers have a duty to notify employees of their potential exposure if someone within the company reports a positive COVID-19 diagnosis, the employer has no such duty to report to state or government officials. CDC reporting happens at the health care provider level. An employer’s main obligations are determined by the United States Department of Labor (DOL) and its Occupational Safety and Health Administration (OSHA). DOL advises employers to focus their efforts on providing a safe work environment for their employees during this pandemic. For many businesses, OSHA regulations that dictate this principle will be new territory for companies not typically concerned about workplace safety hazards. OSHA has developed Guidance on Preparing Workplaces for COVID-19 to assist employers as they navigate this current climate.

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