Virginia Regulatory Town Hall
Department of Labor and Industry
Safety and Health Codes Board
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6/22/20  11:19 pm
Commenter: Andrew Walton

Covid Confidentiality Rules

I recommend two changes to the following statement on page 18:

"7. If an employer is notified of a COVID-19 positive test for one of its own employees, a subcontractor employee, contract, temporary employee, or other person who was present at the place of employment within the previous 14 days from the date of positive test, the employer shall notify:

a. Its own employees within 24 hours of discovery of their possible exposure while keeping confidential the identity of the known COVID-19 person in accordance with the requirements of the Americans with Disabilities Act (ADA) and other applicable Virginia laws and regulations;"

Recommendation 1: I recommend changing paragraph a. to say "...while keeping confidential the identity of the known COVID-19 person except to warn those individuals who were within close contact (less than 6 feet for more than 15 minutes) of the person who tested positive for COVID-19...." 

My concern is that, as worded, employers may not notify individuals who were in close contact with someone with a confirmed positive case, but will instead issue a blanket statement to all personnel inside the facility.  This could inhibit the work of contact tracing, and further spread the disease if those who were within close contact of someone who tested positive are not explicitly warned to follow the CDC guidance located here:

My concern is that an employee who is notified that someone who was in their facility at some point within the last two weeks tested positive will not necessarily know what to do.  An employee who is told that they were in close contact with someone who tested positive and should therefore isolate for 14 days and monitor their symptoms is given a more clear understanding on what they should do.

EEOC has issued guidance that CDC recommendations take precedence over the ADA in regards to the COVID-19 pandemic: 

"The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19." 

Therefore, I believe that DOLI should encourage employers to discretely notify all persons who were within close contact with someone that the employer knows to have tested positive.  That way, those who were in close contact can follow the CDC recommendations and guidance. 

Recommendation 2: Change the timeline from the 14 days leading up to the test to 48 hours from reported symptom onset.  

This relies on an assumption of good faith reporting by the employee who has tested positive, but brings the guidance in line with the CDC Public Health Guidance for Community Related Exposure. 

CommentID: 83734