By Cheryl A. Edwards, Natasha Jategaonkar, Deanah I. Shelly and Paul D. McLean. Firm: Mathews, Dinsdale & Clark LLP
One of your workers has COVID-19! What do you do now?
Even though you’ve taken all reasonable and practical measures to prevent infection in your workplace, you get that dreaded call: One of your workers (or worse, a group of workers) is ill with high fever, trouble breathing and other known COVID symptoms! What you do next may have a dramatic impact on not only your liability exposure but also your business and its reputation.
Take a deep breath, don’t panic and implement these 6 response measures which we recommend based on our experience, legislation and public health guidance. (Note: Additional steps may be necessary if you’re a hospital, skilled nursing or healthcare facility.)
1. Immediately Isolate the Worker
If the workers showing symptoms are in the workplace, you need to immediately isolate them and others with whom they’ve been in close contact. Strategic Pointer: Designate a medical room or location for such purposes, if you haven’t already done so. If available, provide masks to the workers and first aiders and others providing direct care.
2. Get Public Health & Healthcare Advice
Most jurisdictions recommend/require employers to contact local public health authorities when a worker reports being ill with COVID-19 symptoms. Public health guidance can help you determine whether to send other workers home, which persons to notify or even whether to close the workplace temporarily, especially if it appears that multiple persons have been impacted. Public health guidance may also require or recommend performing contact tracing on those who’ve had recent ‘close contact’ or other contact with the worker. Strategic Pointer: Keep a log of all workers and visitors in the workplace on a given day to allow for immediate and accurate contact tracing. (See the OHSI website for a Model Contact Log Sheet you can adapt.)
3. Request Immediate COVID-19 Testing
Ill workers should contact their own physician, or if the situation appears to be an emergency, seek immediate medical assistance. Request testing for COVID-19 to confirm any suspected case of the virus bearing in mind that symptoms similar to COVID-19 may be caused by a bad allergic reaction or serious case of other flu viruses with potentially less significant consequences. If possible, provide transport for the worker to a testing or medical assistance facility. Emphasize to both the worker and testing facility the need for rapid testing results. The earlier you can get the testing results, the faster you can make informed decisions about how best to control the spread of the virus. So, stress to both the worker and testing facility the need for speed.
4. Communicate with the Appropriate Parties
Whether a case of infection is suspected or confirmed, communication is a key element in effective workplace and crisis management. HR, OHS or other company management should communicate known details promptly, including indication that testing is being done and timing of expected results. The purpose and scope of communication will, of course, depend on the circumstances. Examples:
- Alerting customers or clients of a suspected case to ensure they’re informed at the earliest possible stage; and/or
- Alerting workers, visitors and others in the workplace or in close contact with a worker who tests positive of their own potential exposure so they can get tested.
Be mindful not to violate the privacy of individuals involved. Rule of thumb: Tell recipients who may have encountered a worker with a suspected/actual infection just what they need to know to understand that they’ve been potentially exposed and decide whether to seek testing. Don’t name names or disclose other information that may reveal the identity of the particular worker. Keep the communication private and refer generally to the areas in which the worker may have worked or been present.
Also be prepared to loop back and update your communications as new information becomes available, e.g., letting recipients know that the worker to whom they were exposed has subsequently tested negative for COVID-19.
Brace Yourself for Potentially Negative PR
Recognize that many provincial health officers have a policy of publicly identifying the location of any COVID-19 outbreak, which includes identifying the workplace’s name and physical location. So, even if you’ve taken all appropriate measures to limit transmission of COVID-19 in your workplace, be prepared for negative media, customer and public attention due to the stigma associated with a COVID-19 outbreak. Prompt communication of honest and direct information about the situation and measures being taken can go a long way toward minimizing the damage. And if you have internal or external public relations experts, plan to utilize them.
5. Decide Whether Case Must Be Reported under OHS/Workers Comp
Employers are legally required to report work-related illnesses to the jurisdiction’s workers comp board , OHS authorities and, in many jurisdictions, the trade union and workplace joint health and safety committee, as well. Generally, there’s no express duty to report a “positive COVID-19 test” to OHS or workers comp authorities, unless it clearly or arguably arose from an exposure at the workplace, e.g., if there have been other positive cases or a significant COVID-19 outbreak occurred at the workplace. In addition, several jurisdictions, including BC, SK, MB and ON, have tabled legislation that would create the presumption that COVID-19 infection is work-related for workers comp purposes when suffered by workers in healthcare, emergency response and other designated high-risk industries.
6. Decide Whether to Shut Down All or Part of the Workplace
Carefully consider shutting down all or part of the workplace, depending on all of the circumstances. A decision to shut down a workplace pending confirmation of a positive test, may be premature, but in our view should be the subject of advice from local public health authorities. Upon confirmation of a positive case, promptly assess the number and frequency of contacts, and other circumstances. Questions to ask include:
- When did the worker last attend at the workplace? (Shut down may be unnecessary if significant time has passed since the last shift or the worker regularly works at home);
- Does the worker work in a crew? (If so, all crew members may have been exposed and may need to be sent home to self-isolate along with the ill worker);
- Does the worker and other workers in close proximity to him/her work in specific area separate from others in the workplace? (It may be possible to identify that group and send them home along with the ill worker to self-isolate);
- Is it possible that an entire worksite, such as an office, has had exposure due to working closely together and contact with the ill worker with physical work product or objects?
- What workplace engineering, administrative and cleaning controls are in place that may have reduced the risk of transmission?
- Was the worker wearing protective equipment as recommended or required? (This bears on the assessment of potential for exposure);
- Can areas the worker is known to have accessed be cleaned promptly and thoroughly to permit continued operations?
OHS regulators may attend at the workplace (physically or by phone), and make the decision on shut down for you. OHS may attend after any report of a workplace-related exposure, work refusal or due to a worker complaint. Communication with OHS regulators respecting the employer’s assessment of all the above factors, as well as providing relevant written pandemic processes, and protective measures being taken, is important in determining whether a stop work order may be issued, and a shutdown is necessary, pending additional measures.
Acknowledgement: Our thanks to Mathews, Dinsdale & Clark LLP, a Canada-wide law firm solely dedicated to workplace law for more than 60 years for contributing this article. Authors Cheryl A. Edwards https://mathewsdinsdale.com/our-team/cheryl-a-edwards/and Deanah I. Shelly https://mathewsdinsdale.com/our-team/deanah-i-shelly/are partners in the firm’s Toronto office; Natasha Jategaonkar https://mathewsdinsdale.com/our-team/natasha-jategaonkar/is an associate and Paul D. McLean https://mathewsdinsdale.com/our-team/paul-d-mclean/a partner in the Vancouver office. Click here https://mathewsdinsdale.com/ to access the firm’s detailed Covid Resource page and further resources.