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COVID-19 Positive in the Workplace: Now What?

Written by Zana Tomich on August 26, 2020 Category: Coronavirus, Employment Law, General Counsel and Advice

Executive Order 2020-166 discussed in this post was subsequently rescinded, and incorporated with amendments in  new Executive Order 2020-172 as explained in the update posted here

Your Michigan business closed during the stay at home orders; it abided by all the rules in Governor Whitmer’s Executive Orders; it protects its employees, follows the mask mandate, disinfects the workplace, and follows social distancing rules.

And yet, inevitably, one of your employees, customers, or vendors will inform you they tested positive for COVID-19. What steps do you need to take in response?

If an Employee was in contact with someone who tested positive:

As of this writing, pursuant to Executive Order 2020-166, any and all people who were in close contact with someone who is positive for COVID-19 or have the “principal symptoms” of the virus must stay home until either of the following conditions are met:

  • 14 days have passed since the last close contact with the sick or symptomatic individual.
  • The individual displaying symptoms receives a negative COVID-19 test.

The order defines “principal symptoms of COVID-19” as “fever, sore throat, a new uncontrolled cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.”

These symptoms may define a myriad of illnesses and protect employees who may not have been exposed to the virus, nor contracted it, but experiencing seasonal allergies.

The new Executive Order adopts the Centers of Disease Control definition of “close contact” as someone who was in 6 feet of an infected person for at least 15 minutes.

The order also protects employees from discharge, discipline, or other retaliation for staying home when he or she is at particular risk of infecting others with COVID-19. Employers must treat these employees as if taking medical leave under the Paid Medical Leave Act, by providing paid or unpaid leave, if paid leave is not available.

Nothing in the order prevents an employer from discharging or disciplining an employee who is allowed to return to work, but declines to do so, or for any other lawful reason.

If an Employee is confirmed to test positive for COVID-19:

Pursuant to the Order, an employee who is confirmed positive for COVID-19 must stay home until all of the following conditions are met:

  • 24 hours have passed since the resolution of fever without the use of fever-reducing medications.
  • 10 days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result.
  • Other symptoms have improved.

In addition, depending on the county in which the business resides, there may be obligations on the employer to notify the health department of the positive case.

Contact Tracing for Employees and Visitors:

Within 24 hours of being informed of the positive test, the Employer must notify those individuals who were in close contact with the confirmed positive person. Close contacts are those people who were in contact with the confirmed positive individual within the 2 days prior to the symptoms having been presented. With this, the employer should recall who was present the in the workplace on those given days – think about vendors, suppliers, customers, clients who may have been at that given workplace.  Given this requirement, it is a prudent course of action to keep track of who is in the workplace, on any given day. Consider having a sign in for all customers, vendors, and employees and providing identification and contact information for all visitors.

Other Requirements

In addition, the Company should already be complying with Executive Order 2020-161 – Safeguards to Protect Michigan Workers – which provides requirements for separate industries. For example, it requires employers in an office workplace to:

  1. Develop a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration (“OSHA”) and available here.
  2. Within two weeks of resuming in-person activities, a business’s or operation’s plan must be made readily available to employees, labor unions, and customers, whether via website, internal network, or by hard copy.
  3. Designate one or more worksite supervisors to implement, monitor, and report on the COVID-19 control strategies. The supervisor must remain on-site at all times when employees are present on site. An on-site employee may be designated to perform the supervisory role.
  4. Keep record of health screenings.
  5. Institute cleaning and communications protocols when employees are sent home with symptoms.
  6. Notify employees if the employer learns that an individual (including a customer, supplier, or visitor) with a confirmed case of COVID-19 has visited the workplace.

Should your company need assistance in preparing these policies, or navigating one of these situations, please contact us to guide you through this challenging time.

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The business and employment attorneys of Dalton & Tomich take your business just as seriously as you do. Attorneys Zana Tomich and Noel Sterett are trusted by closely held family businesses and others across Michigan and Northern Illinois as invaluable partners and counselors. We guarantee all your calls and emails will be returned within one business day so you can focus on what you do best: running your business.