Editor’s note: This article was updated on August 5, 2020 to reflect Texas Education Agency (TEA) information on return to work guidelines and close contact posted on August 4, 2020.
We continue to see daily reports of COVID-19 diagnoses in and around school districts, and district HR staff likely have had to deal with these issues directly as more employees have returned to campuses and central office buildings.
While “allow the employee to telework” remains the best guidance to avoid exposure and to address the need for exposed staff to self-isolate, there are large groups of employees who are unable to work remotely (e.g., custodians, child nutrition workers, bus drivers).
A positive diagnosis of COVID-19 is straightforward and results in the application of Emergency Paid Sick Leave (EPSL). Determining whether an employee was exposed is much more complicated and involves some more complex decision-making, including:
- Has the employee been exposed?
- What type of leave should be applied?
- How long should leave last?
- What are the return procedures?
- What should be done if the employee exhausts EPSL?
Exposure
An employer must deal with two types of COVID-19 exposure: on-duty and off-duty. A worksite exposure typically results in the employer notifying the employee of the exposure, while an employee notifies the employer of an offsite exposure. The employer’s response to both will be somewhat similar.
As difficult as it may be, the employer should seek the degree of exposure. Being in a room with an individual diagnosed with COVID-19 may or may not be exposure. Some questions to consider include the following:
- How close was the individual to the person who tested positive?
- Were either or both individuals wearing masks?
- What was the length of time of the interaction?
The answer to these questions can help inform the employer’s decision to remove the exposed employee from the worksite for 14 days from the last date of exposure. Districts should also consider the TEA definition of close contact that was updated on August 4:
- Being directly exposed to infectious secretions (e.g., being coughed on); or
- Being within 6 feet for a cumulative duration of 15 minutes; however, additional factors like case/contact masking (i.e., both the infectious individual and the potential close contact have been consistently and properly masked), ventilation, presence of dividers, and case symptomology may affect this determination
Either (a) or (b) defines close contact if it occurred during the infectious period of the case, defined as two days prior to symptom onset to 10 days after symptom onset. In the case of asymptomatic individuals who are lab-confirmed with COVID-19, the infectious period is defined as two days prior to the confirming lab test and continuing for 10 days following the confirming lab test.
Some employees may be able to work remotely while others may not. Regardless of the work arrangement, the exposed employee should keep the employer informed of their health status and testing results.
Some employers may be wondering how to respond to a secondary exposure, such as exposure to someone who has been exposed but not diagnosed with COVID-19. These employees should not automatically be sent home. They may be asked to wear a mask, practice social distancing, take extra steps to ensure good hygiene, and monitor their health.
Access to leave
An employer has the obligation to maintain a safe environment and has the right to exclude an employee from work because of exposure (whether it occurred on-duty or off-duty), being symptomatic, or testing positive. The employer is not obligated to continue to pay the person. If the job responsibilities can be performed remotely, assigning leave is not necessary. If the individual is not able to perform job duties remotely, HR will need to determine if the person is eligible for EPSL or accrued leave.
An employee is eligible for EPSL if required to self-quarantine by a federal, state, or local order; when advised by a health care provider; or when experiencing symptoms and seeking a medical diagnosis. A district telling an employee to stay away from the worksite is not a local order. To access EPSL, the employee must provide documentation of a health care provider’s advice to self-quarantine. An exposed employee without symptoms may choose not to consult with their doctor or test for COVID-19. EPSL would not apply but accrued paid leave may be applied according to provisions in the employer’s policy.
Length and exhaustion of leave
EPSL is limited to a total of two weeks (10 days) April 1–December 31, 2020. An employee required to self-quarantine is limited to 10 days no matter how many exposures occur. Once EPSL is exhausted, the employee would be required to access accrued leave or be placed on unpaid leave. Districts with neutral absence policies may consider establishing exceptions to the policy to allow additional unpaid leave for employees who are required to be out of work multiple times. Any exceptions should be applied consistently to all employees.
If an employer is concerned over the impact on workers who are not able to work remotely, the board could adopt a resolution to provide additional leave. Each employer will need to determine if it is economically feasible or advisable based on employee use of leave. Employers who wish to provide additional leave through a resolution may consider placing limits on the total number of days provided, limiting the number of times an employee could access the leave, and applying a reduced rate of pay (e.g., two-thirds the regular rate of pay). Sample resolutions for extending leave are addressed in TASB Legal Services’ Personnel Issues During Epidemics and School Closings.
Even with these extra provisions, an employee may reach the point of exhausting all paid leave. A district may consider providing unpaid leave prior to termination, especially when an employee is repeatedly exposed at work. Consideration for unpaid leave also may be given for exposures beyond the employee’s control (e.g., spouse is a healthcare worker). Any termination procedures would need to follow district policy and applicable law, including those required for individuals employed by Chapter 21 contracts.
Return to work
In the Public Health Planning Guidance, TEA provides criteria for an employee’s return to work. The employee:
- Fever free without medication for at least 24 hours;
- Improvement in respiratory symptoms; and
- At least 10 days since symptom onset
To return to work sooner than noted above, the individual must:
- Provide a medical note for return based on an alternative diagnosis; or
- Obtain a negative acute infection test at an approved location
If asymptomatic, the employee should be excluded from work for 14 calendar days after exposure.
Careful consideration should be given to the return of an employee based on a negative test result. Unfortunately, the testing only shows whether an individual is infected at that specific moment. An individual may test negative and still develop COVID-19 during the required quarantine period.
According to Harvard Health Publishing, a coronavirus test could give a false negative depending on the type of test and when the test is performed. A nasal/throat swab or saliva test results in a false negative:
- 100 percent of the time on the day you are exposed to the virus
- About 40 percent of the time if you tested four days after exposure to the virus
- About 20 percent of the time if you develop symptoms and are tested three days after those symptoms start
Possibility of false negative is a good reason to require continued self-isolation if the employee has symptoms that could be COVID-19 or has been exposed to someone known to be infected.
TEA Guidance for Reopening and Student Interaction outlines requirements for an employee to self-isolate if diagnosed, experiencing symptoms, or living with someone diagnosed or experiencing COVID-19 symptoms.
Final considerations
The district must communicate requirements for response to diagnosis and exposure to COVID-19 to staff and students and to do their part to stop the spread. Communicating these helpful hints should reduce the threat of exposure and the number of diagnoses:
- Avoid close contact with people who are sick or have been exposed
- Cover your cough or sneeze with a tissue, then throw the tissue in the trash
- Avoid touching your eyes, nose, and mouth
- Clean and disinfect frequently touched objects and surfaces
- Stay home when you’re sick, except to get medical care
- Wash your hands often with soap and water for at least 20 seconds
- Wear a mask
Karen Dooley is a senior HR consultant at TASB HR Services. April Mabry is an assistant director at HR Services. Amy Campbell is the director of HR Services. Send any one of them an email at hrservices@tasb.org.
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Tagged: COVID-19, "Family and medical leave", HR, Leave