April 18, 2020
If, despite your best efforts, an employee tests positive for COVID-19, what should you do? The CDC website is an excellent source for information on creating a plan for your business if someone employed by your business tests positive for COVID-19. Click here for more information.
If an employee tests positive for COVID-19, employers should consider taking steps to ensure the employee is cared for and ensure the safety of others. Treat positive test results and “suspected but unconfirmed” cases of COVID-19 the same. If the source of infection is known, identify if it was at the workplace or outside.
If the infection was contracted inside the workplace, it is strongly advised that the business take the following steps:
If the infection was contracted outside the workplace there are several things to consider and implement to protect the company. If the employee is eligible for paid leave under the Families First Coronavirus Response Act (FFCRA) , place them on paid FFCRA leave and apply for an FFCRA payroll tax credit. While the employee should already be aware due to the FFCRA poster requirements, inform the employee that they may use this type of leave.
If your company offers short term disability, determine if and when employee is eligible. Additionally, the company should ask the employee if they grant the company permission to disclose the fact that the employee is infected.
If the employee consents to disclosing the fact they are infected, get the consent in writing. Then, the company should notify employee’s manager(s) or supervisor(s) that employee is infected with COVID-19 and is out on leave. For everyone else, respond to inquiries by disclosing employee is on a leave of absence for non-disciplinary purposes.
If an employee denies consent to disclose the fact that they are infected, notify employee’s manager(s) or supervisor(s) only that employee is on a leave of absence for non-disciplinary purposes.
Regardless of if the employee gives their consent to disclose the fact they are infected, the company must comply with any required notifications to OSHA or the MN Department of Health.
The company should also notify the employee’s co-workers who may have come into close contact with the infected employee at work within the past 14 days. Co-workers should be told that they may have been exposed to COVID-19 and may wish to see a healthcare provider. For employees who had very close contact with employee in past 14 days, send them home for a 14-day self-quarantine. In most cases, these employees will also be eligible for paid leave under the FFCRA.
If your company has more than one store or office location, the company is not required to notify other locations unless the employee visited those sites within past 14 days.
DO NOT identify the infected employee by name. To the extent reasonably possible, avoid making any direct or indirect references that would lead the co-workers to guess the identity of the employee. In many small businesses other employees may infer who the employee is, but that does not mean you shouldn’t do what you can to avoid having others find out about the employee’s private health information.
The company should also notify known customers, vendors, or third parties with whom the employee may have come into contact with through work (including customers who had direct close contact with the employee at a job site) within the past 14 days that they may have been exposed to COVID-19 and may wish to see a healthcare provider. Again, DO NOT identify the infected employee by name. To the extent reasonably possible, avoid making any direct or indirect references that would lead the person to guess the identity of the employee. Again, we know this is hard to do in a small company, but try.
There is no guidance on how far a company should investigate for third parties who may have come into contact with an employee through work. It is safe to include any parties on the employee’s work calendar, co-workers who have had close contact, or other people readily available or known.
The employer should arrange for a deep and thorough cleaning of the employee’s workspace if they have one. Other tools, equipment, and vehicles used by the employee should also be cleaned.
Employers should respond to inquiries by CDC or public health authorities if they are received. In this instance, the employer is allowed to disclose the identity of the employee and protected health information.
There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. (The employee’s healthcare provider has that reporting requirement.)
Finally, having worked in the green industry for more than 25 combined years, we get it. Sending home every employee who had close-contact with a COVID-19 positive employee, may significantly reduce the company’s workforce and will impact the bottom line even more than it already has been. The company has to make some very hard decisions. If the business can continue to operate and enforce extreme social distancing measures, then it is up to the business owner to decide. If many or all employees of the business likely came into contact with the employee who tested positive, it may be best to shut the business down to the extent possible for a minimum of 2 weeks. While this sounds extreme, the alternative is that additional employees will actually contract COVID-19 and the spread of the virus within your company will require you to shut down even if you don’t want to.
Copyright © 2020 Zlimen & McGuiness, PLLC, All rights reserved.
Dear MELNA Members,
I have received many questions as to what businesses are considered to be “essential” in light of Governor Mills’ most recent “Stay At Home” Executive Order issued late yesterday after noon.
The definition of Essential jobs are defined under Governor Mills’ March 24 Executive Order outlining essential businesses and operations. Therefore those definitions are unchanged, It is my understanding that both horticulture and landscaping are considered essential businesses and may remain open, with some guidelines listed below.
Horticulture is part of the definition of agriculture, and therefore essential. Nurseries, greenhouses, retail garden centers (especially if they sell vegetable plants), may remain open. For retail garden centers, there are some specific guidelines:
Restricting Number of People in Essential Stores
Governor Mills’ Executive Order restricts the number of people allowed at essential businesses at any one time, mandates that they conduct as much business as possible by curbside order and pick up or delivery to limit in-person contact, and enforce physical distancing in and around their facilities by prominently posting signs at public entrances and on the floor to notify customers to stay six-feet apart. It also requires that they disinfect the handles of every cart and basket between uses, minimize customer handling of unpurchased merchandise and offer separate operating hours for Maine people over the age of 60 and those with underlying medical conditions.
Under the Executive order, essential stores with retail spaces of:
• Less than 7,500 square feet limit the number of customers in the store at one time to 5. Examples of such stores include gas stations and convenience and specialty food stores.
• More than 7,500 and less than 25,000 square feet limit the number of customers in the store at one time to 15. Examples of such stores include stand-alone pharmacies and certain hardware stores.
Retailers must enforce these limits and a six-foot separation between any customers waiting in lines. Any essential business which violates this Order will be subject to further on-site restrictions or closure until those violations are addressed. These new requirements adjust and mandate prior recommendations from the Governor regarding essential businesses and operations.
On March 28, 2020 the Department of Homeland Security updated the national Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response to indicate which businesses the Federal Government have determined are critical and essential and should remain in operation. The list specifically enumerates the landscape industry, which includes all aspects of landscape services including landscape maintenance, lawncare, irrigation and treecare.
“Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response.”
ADVICE: Just because landscaping may be deemed essential, not all landscape projects are essential. I advise you to look at each job and ask yourself if that specific project is essential at this time.
Here is a link to some guidance on policies to have in place within landscape companies.
• News out of New York state (the current epicenter of COVID-19 in the US) indicates that horticulture and landscaping has specifically been removed from the list of essential businesses, but companies may seek waivers based upon individual projects.
• Just because you fit the definition of essential, that does not mean you must stay open. You can decide to close at any time. From the Maine Department of ACF: “The essential services guidance provided by the Department was meant to provide additional context and description to the Governor’s emergency proclamation of 3/24 when she deemed Agriculture as an Essential Service. However, the Governor’s actions do not compel any business designated as essential to actually continue to operate should they choose otherwise. The Department understands your concerns and recognizes during this unprecedented time that the practicalities of and risks posed by staying open as a business can be difficult. It is ultimately your decision as a business owner to continue to stay open, adjust your schedules and routines, or to shut down for the interim.”
MELNA will continue to monitor COVID-19 advisories and advocate on your behalf at the federal, state, and local levels.