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What businesses must disclose when a worker is diagnosed with COVID-19

Customers keep their social distance while waiting to

Customers keep their social distance while waiting to enter at a Trader Joe's grocery store, which one attorney praised for its transparency to customers. Credit: Newsday/Alejandra Villa Loarca

Employment lawyers are fielding a slew of calls from businesses looking for guidance on what to tell colleagues and customers when workers test positive for coronavirus.

As coronavirus spread, federal agencies have hastily updated workplace safety standards in an attempt to stay ahead of the pandemic. Employment lawyers are scrambling to help businesses keep up with the latest guidances from the U.S. Department of Labor's Occupational Safety and Health Administration and the Centers for Disease Control and Prevention.

If employers do not comply with evolving recommendations, they risk being held liable for not upholding existing health and safety laws, according to attorney Peter Ennis, a shareholder and member of the labor and employment group at Cozen O'Connor.    

When an employee notifies an employer that he or she has been  diagnosed with coronavirus, businesses must disclose enough information to maintain a safe work environment under the federal Occupational Safety and Health Act, without sharing employees' health conditions, which must be kept confidential under the federal Americans with Disabilities Act, Ennis said.

Through private conversations, employers should determine if diagnosed staff reported to work within two weeks of experiencing any coronavirus symptoms, the attorney said. If they were in the workplace during this incubation period, businesses must — at a minimum — alert anyone who may have come within 6 feet of the diagnosed worker about potential exposure, said Ennis, who represents employers. Companies may not mention specific staff members' names while notifying colleagues that they may have been near someone who tested positive for the virus.   

Sharing when the diagnosed worker was last in the building is also wise, according to Domenique Camacho Moran, partner and head of employment law at Farrell Fritz P.C. in Uniondale. Providing dates gives workers a sense of how long to watch for symptoms, which can take up to 14 days to manifest, she said.

"There's also just the emotional piece of that,” said Moran, who represents employers. "If you have an employee who was last at work on March 28, that gives you a sense of: OK they may have just tested positive, but I already am [a certain number of]  days away from when I was last exposed to them." That gives employees a sense of when they can breathe a sigh of relief, she said.  

If employees are not properly alerted and contract the virus at work, they may be entitled to Workers' compensation, according to Ennis. He said businesses could face fines from the federal government, and in some cases, negligence lawsuits for failing to provide a hazard-free workplace.

Ennis said it was unclear exactly when businesses must legally alert the federal government that workers developed COVID-19, the disease caused by the new coronavirus, on the job. He recommends that businesses report cases as a "recordable illness" to OSHA when there is a chance that staff may have caught COVID-19 while working closely with diagnosed individuals.

OSHA reviews instances of "recordable illness" and other injuries to monitor and enforce safety standards.   

Employment lawyers said they were not aware of any laws obligating businesses to disclose cases to customers, but Ennis said there is a chance companies could be vulnerable under negligence laws.  When asked about companies' obligations to inform consumers about diagnoses, federal and state health departments said through spokesmen that businesses should contact local officials for guidance. 

Nassau County spokesman Mike Fricchione said there is no law obligating businesses to alert customers about COVID-19 cases. 

"The county's response is that the business should do what it believes is appropriate," Fricchione said.

Suffolk County advises employers to determine whether a worker was on-site while symptomatic or within 48 hours of developing symptoms, and if so, alert any staff, customers or others who came within 6 feet of the individual for at least 10 minutes, according to guidance slated to be released Friday. 

Lawyers said, if possible, businesses should track down and notify clients who may have been exposed to diagnosed staff. This may be difficult in retail settings, said Douglas Rowe, partner of the labor and employment group at the Long Island-based Certilman Balin. Still, Rowe said stores can build trust by describing their responses via public statements, notices on social media or physical signs. 

Alan Sklover, an employment lawyer who represents workers, praised his local Trader Joe's, which acknowledged in news articles that it was temporarily closing the Merrick location for sterilization because staff there tested positive for the virus.

"When you disclose to others, then they can make their own decisions, informed decisions," Sklover said. 

Trader Joe's did not respond to requests for comment. 

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