COVID-19 infections in the Texas Panhandle are raging like a wildfire, so what is an employer’s duty to prevent its spread and what procedures should be followed with COVID-positive employees, quarantines, and employees whose off-duty behavior is pyromaniacal?
As of Friday, October 30, Amarillo’s hospitals are alarmingly full of patients suffering from COVID-19. Our hospitalization rate yesterday was 27.4%, meaning that our area has exceeded the governor’s 15% threshold (to shut down bars, stop elective surgeries and reduce occupancy of businesses and restaurants to 50%) for 13 days. El Paso is the only spot in Texas faced with worse effects of the pandemic at this time.
Our local officials and physicians are exceedingly alarmed about our overburdened hospitals, begging Panhandle citizens to stay home as much as possible and wear a mask when in public, along with practicing social distancing, hand-washing, etc. We all have to “decrease our social calendars and increase our COVID-consciousness,” Amarillo Mayor Ginger Nelson said, because our infections are not arising from large hotspots like prisons or meatpacking plants, but from birthday parties, baby showers and other small community-spreading events. And city officials are saying that the next six weeks of holiday celebrations could make a bad situation even worse.
Despite COVID fatigue, it is clear that hoping for “herd immunity” to COVID-19 in our area is not an option because our hospitals are already overwhelmed. Waiting for everyone to develop immunity to this disease is like passively watching a wildfire burn thousands of acres today and believing that if 2021 turns out to be a wet year, that future precipitation will help extinguish the current blaze.
City leaders are begging employers to take the lead to educate and monitor their employees. Some employers are returning to remote work options that were common in the spring of 2020. If employees are to remain in the workplace, your business should be enforcing Governor Abbott’s mask order, GA-29, which requires masks be worn inside commercial establishments whenever employees are less than six feet apart. It only makes good business sense to follow these mandates to try to reduce the absenteeism of your employees and lost productivity, not to mention avoiding the cost of providing paid time off to your sick and quarantined employees. I’ve already counseled some small employers who did not have enough healthy employees, so they had to close the business for several days.
But while enforcing good health and safety practices inside your business is important right now to prevent as much spread of COVID-19 as possible, you are still going to have to deal with some employees who become infected or have had direct exposure to the virus. I’ve previously addressed the six steps for dealing with these infections and exposure. However, there has been an avalanche of new information and protocols since I last wrote about employer COVID procedures, so here is an updated summary:
- The availability of rapid, reliable testing has not really improved much over the course of this pandemic. Because of this, the CDC is still recommending a symptom-based strategy before returning those who are COVID-positive to work. That means that any employee who has symptoms or tests positive for the coronavirus must quarantine at home for 10 days after their first positive PCR (not rapid antibody) test or the onset of symptoms. If symptomatic, in addition to the 10-day quarantine, the employee must also be fever-free for 24 hours without medication and their other symptoms must be reduced before returning to work. So just relying on the calendar and the employee’s description of symptoms is the CDC’s recommendation.
- Similar calendar-based recommendations apply to those who have been directly exposed to the virus. The CDC’s rules (as of October 21, 2020) for those who are directly exposed to the virus (within 6 feet of a COVID-positive or symptomatic person for greater than 15 minutes in any 24-hour period within 2 days before symptom onset or a positive test and the end of that person’s quarantine) state that your directly-exposed employee must quarantine for 14 days from last exposure. This provides quite a conundrum when a family member in the same home as your employee is infected. It could mean that unless your employee is able to completely isolate at a location away from the sick family member, your employee’s quarantine could conceivably last throughout the family member’s illness plus two more weeks after the family member recovers. That’s one of the reasons that many employers are still pursuing a testing strategy rather than relying on this CDC recommendation to determine when an employee can safely return to work.
- The CDC rules don’t discuss or recommend negative tests (except for healthcare providers) as a return to work strategy. However, it is legal for employers to require their employees to undergo job-related COVID-19 testing, to know, for example, if the employee is safe to be around other employees. So employers can decide to require all COVID-positive employees to get a negative test before returning to work. Additionally, some employers have decided that a reliable negative test after the most recent direct exposure (generally performed at least 3-5 days later) is sufficient to allow an employee to safely shorten a lengthy quarantine (understanding that there is some small litigation risk in ignoring CDC’s calendar-based quarantine recommendations). The employer must be consistent (not discriminatory) in enforcing these testing rules, but also be ready to adjust because of an employee’s health, disability or religious objections (not political ones—since political beliefs are not protected by employment civil rights laws), or because the public health authority objects. Importantly, employers who require negative testing must pay for that testing unless health insurance is covering 100% of the cost.
- The CDC rules also don’t mention masks in the direct exposure quarantine calculation. But the science is fairly clear that universal mask-wearing can reduce the risk of your employees getting infected and also reduce the severity of the course of the disease. Mask-wearing is what our schools are relying on to continue in-person instruction. Amarillo Public Health has advised the Amarillo Independent School District that if the infected person was masked and if all persons directly exposed were masked during all interactions, the people exposed do not have to quarantine. Therefore, if you as an employer are strictly enforcing mask use to protect your employees, lost employee time because of direct exposure between employees may be significantly reduced, particularly if combined with a reliable negative test.
- What can an employer do about risky off-duty behaviors in which employees are engaging that leads to exposure to COVID-19? Cassie Stoughton of Amarillo Public Health pointed out recently that their data shows that employees are often exposing one another before and after shifts, during break time and while lunching together. As an employer, you can encourage or enforce social distancing, staggered break times, mask rules or other protective measures during these crucial times on premises to try to protect your workers and your business. But once your employees leave your premises, it becomes more difficult. Legally, you can set an expectation, draft a written policy or even get your employees to sign a “COVID contract” that requires them to follow some minimum CDC standard or your own more stringent safety recommendations, such as no attendance at gatherings of more than 10 people, no travel to hotspots, no visits to bars, etc. Texas has no laws prohibiting employers from regulating off-duty conduct. However, enforcement must be consistent (non-discriminatory). And monitoring off-duty conduct is extremely difficult. Employee education and modeling of sensible safety measures from the top down may be much more effective.
- Through the end of 2020, the Families First Coronavirus Response Act still requires employers with less than 500 employees to provide 80 hours of emergency paid sick leave to employees who miss work due to COVID-19. The employee is entitled to 80 hours of FFCRA paid leave, whether that time is taken all at once or at several different times. For example, an employee may have used 40 hours while awaiting a negative test in May, then needs to use the remaining 40 hours of emergency paid sick leave when that employee contracts the disease in November. Remember that the 80 hours of emergency paid sick leave is also available to a parent who has to take time off to care for a sick or quarantined child who is missing school, but the required pay for that parental leave is only 2/3 of regular pay. Once the employee has used the required 80 hours of FFCRA paid leave, the employee can then choose to use up their accrued but unused employer-provided paid time off if the employee is still absent due to COVID infection or exposure. Also remember that any FFCRA leave that you pay can be claimed as a credit against your payroll taxes, so that the federal government ultimately shoulders the cost of this paid leave.
- Twelve weeks of emergency paid family leave under the FFCRA is also still required until December 31, 2020, but only if school buildings are actually closed (FAQs 98-100) and the student must be at home (which is not the case anywhere in the Panhandle at the present time). Paid family leave under the FFCRA is not available if the parent personally chooses to keep the child home to learn virtually when school is open with the option for in-person learning.