October 21, 2020

Volume X, Number 295

October 21, 2020

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Returning to Work After Testing Positive for COVID-19

With the increase in COVID-19 cases in California and across the nation, employers are faced with a number of new challenges in the workplace, one of which is determining when employees may return to work after they have tested positive for the virus. Unfortunately, there have been mixed messages from state and federal authorities on this issue.

California’s Department of Fair and Employment and Housing (“DFEH”) released guidelines for employers about COVID-19 and the workplace, which were last updated in late July. The related FAQ indicates that, under the current circumstances, and in accordance with guidance from the Center for Disease Control (“CDC”) and the United States Equal Employment Opportunity Commission (“EEOC”), “employers may require employees to submit to viral testing but not antibody testing before permitting employees to enter the workplace…”

The DFEH guidance further indicates that decisions to allow employees to return to work may follow either a symptom-based, time-based, or test-based strategy. “Symptom-based strategy” refers to the elapsing of time following the cessation of symptoms, “time-based strategy” typically refers to the elapsing of time following an asymptomatic person’s confirmed result, and “test-based strategy” refers to requiring a person who previously tested positive to obtain a second, negative test result.

Also at the end of July, the state of California released the “COVID-19 Employer Playbook,” which provided some guidance on the minimum criteria for employees to return to work. That guidance stated that that symptomatic positive employees could return to work 24 hours after the last fever, without the use of fever-reducing medications, if there had been an improvement in symptoms and at least 10 days had passed since symptoms first appeared. This was also indicated in the California Department Public Health (“CDPH”) Order, issued in June, about responding to COVID-19 in the Workplace.

More recently, on August 24th, the CDPH released guidance which reiterates when employees who have tested positive may return to work, as follows:

  1. Individuals who test positive for SARS-CoV-2, the virus that causes COVID-19, and who have had symptoms, may return to work or school when:

    1. At least 10 days have passed since symptoms first appeared, AND

    2. At least 24 hours have passed with no fever (without the use of fever-reducing medications), AND

    3. Other symptoms have improved.

  2. Individuals who test positive for SARS-CoV-2 who never develop symptoms may return to work or school 10 days after the date of their first positive test for SARS-CoV-2.

The recent CDPH guidance states that employers should follow a time- and symptom-based strategies and discourages employers from using a test-based strategy (i.e., requiring employees to obtain a second negative test result before returning to work).

Employers should also check local public health orders for their county when determining how and when to return to the worksite an employee who has recovered from COVID-19. It is important to also confer with your employment counsel when implementing new policies and procedures related to COVID-19, particularly given that the guidance issued by government authorities continues to evolve at a rapid pace.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 241

TRENDING LEGAL ANALYSIS


About this Author

Principal

Jared L. Bryan is a Principal in the Orange County, California, office of Jackson Lewis P.C. He represents both private and public employers in all aspects of employment-related litigation, including arbitrations, both bench and jury trials, and civil writs and appeals.

In addition to obtaining summary judgment and other involuntary dismissals on behalf of numerous employers, through aggressive law and motion practice, Mr. Bryan also has repeatedly secured substantial attorneys’ fees awards for his clients.

949-885-1360
Associate

Osaama Saifi is an Associate in the Orange County, California, office of Jackson Lewis P.C.  His practice focuses on representing employers in wage and hour matters, as well as preventive advice and counseling.

Mr. Saifi is an experienced litigator who has tried multiple jury trials and defended employers and company executives in litigation related to meal periods, rest periods, overtime, and derivative wage and hour claims. Mr. Saifi’s practice is specifically focused on defending employers in wage and hour class actions and claims brought under California’s Private Attorneys General Act.  Mr. Saifi also defends employers from discrimination and harassment claims brought under California’s Fair Employment and Housing Act and Title VI under Federal law. 

He handles all client matters related to labor and employment law, including providing advice on personnel policies, employee handbooks, employee termination decisions, and wage and hour issues. Mr. Saifi has experience defending clients in claims brought by the EEOC, DFEH, OSHA, DLSE, and NLRB investigations, including onsite investigations and interview with employees.

Prior to joining Jackson Lewis, Mr. Saifi defended agricultural employers and grower and shipper industries in navigating complicated Wage Order 13 & 14 issues. Mr. Saifi also served as a Deputy District Attorney in Northern California, in which he prosecuted over 800 cases.

While in law school, Mr. Saifi worked as a Clinical Student at both the Loyola Immigrant Justice Clinic and the Loyola International Human Rights Clinic. He also served on Loyola Law School’s Scott Moot Court Honors Board as a National Team Oralist and was a finalist in the 2014 Scott Moot Court Competition.

Professional Associations and Activities

  • Ahmadiyya Muslim Lawyers Association USA, General Secretary 

Practices

  • Class Actions and Complex Litigation

949-885-1360