FAQs: What If My Employee Tests Positive for COVID-19?

By Nicole Murphey

  1. Question: I run a small business with fewer than 50 employees. One of my employees tested positive for COVID-19 and is demanding “COVID sick pay.” Am I required to pay her or is my small business exempt? 

    Answer: The company will most likely be obligated to provide paid sick leave in this instance.  

    Rationale: The Families First Coronavirus Response Act (FFCRA) went into effect on April 1, 2020 and it applies to all companies who employ between 1 and 499 employees.  Until further notice from the US Congress, the FFCRA is set to expire on December 31, 2020.  The FFCRA essentially requires employers to provide 2 kinds of paid leave: up to 10 days of “sick leave” and up to 10 weeks of “childcare leave” for reasons related to COVID-19.  More details about the FFCRA can be found here in our whitepaper. 

    “But I thought small businesses with fewer than 50 employees were exempt from the FFCRA?”  

    Answer:  It depends on the type of leave and if you meet the narrow conditions.  

    If the employee is personally sick with COVID-19, the small business will most likely be responsible for providing up to 10 days of paid sick leave.  

    If the employee is seeking some form of leave to take care of a child because schools and daycares are closed – then the company MAY be exempt if:
  1. the employee is seeking “sick leave” to care for a minor child due to school or place of care closures because of COVID-19 related reasons, or seeking “childcare leave” (also referred to as Emergency-FMLA leave) to take care of a minor child because the child’s school or place of care is closed or their child care provider is unavailable, due to COVID-19 related reasons;  AND
  2. the company employs fewer than 50 employees; AND
  3. an authorized officer of the company has determined at least one of the following conditions are met:
    • Company absolutely cannot afford it” — the provision of paid sick leave or emergency family leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at minimal capacity; OR
    • We’re lost without this key employee” — the absence of this employee who is requesting leave would entail a substantial risk to the financial health or operational capabilities of the small business because of the employee’s specialized skills, business knowledge or responsibilities; OR
    • We don’t have enough workers to operate” – there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting paid sick leave or emergency-FMLA, and these labor or services are needed for the small business to operate at a minimal capacity. 
  1. How has the CDC’s definition of “close contact” with a person infected with COVID-19 changed? 

Per CDC website, the definition of “close contact” = Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.

  1. When can I permit my employee to return to work after he has been out sick with COVID-19? 

You have an option to use either of these strategies to determine when the employee can stop self-isolation and will be eligible to return to work:

a. Symptom-based strategy [MOST COMMON]: The ill employee should be excluded from work until she meets all of the following CDC guidelines:  

(i) 24 hours since her last fever without use of fever-reducing medications
(ii) Symptoms have improved, AND 
(iii) Waited 10 days since symptoms first appeared.

NOTE: If employee never developed symptoms, isolation and other precautions can be discontinued 10 days after the date of their first positive test. 

b. Test-based strategy: If the ill employee is able to get a COVID-19 test, she can be around others when all of these are met: 

(i) She has no fever (and is not using fever-reducing medications),
(ii) Symptoms have improved, AND 
(iii) She receives two negative test results in a row, at least 24-hours apart. 

Note: If using the test-based strategy, the COVID-19 test needs to be one that is “FDA Emergency Use Authorized COVID-19 molecular assay for detection of SARS-CoV-2 RNA.”  There was some concern about “at home” tests or other less reputable means, so the CDC updated its guidance to specify the type of test which may be relied upon. The CDC has provided further information here and here.