New Executive Order Narrows COVID-19 Protections For Employees

Previously, we informed Employers of State and Federal protocols addressing a COVID-19 positive result in the workplace. The focus of the post was Executive Order 2020-166, which described the protections afforded to employees who tested positive, or exhibited the “principal symptoms” of COVID-19.  Since that writing, Executive Order 2020-166 was rescinded, and incorporated in full and amended in Executive 2020-172.

The prior Executive Order, 2020-166, provided protections to employees who displayed the defined “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.”

As became almost immediately apparent, those symptoms were very broadly defined and could have described a myriad of illnesses that could well be anything but COVID-19, and had the unintended consequences of providing protections for employees who may not have been exposed to the virus, nor contracted it, but experiencing seasonal allergies.

The new order, Executive Order 2020-172, narrows the definition of “principal symptoms of COVID-19” to provide that the principal symptoms of COVID-19, “are (i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath; or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, abdominal pain.”

The new order incorporates the previous requirements that 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.

“Close contact” is defined as someone who was in 6 feet of an infected person for at least 15 minutes.

To reiterate, the order 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.