Earlier this month, the Naperville DMV closed its office and paid all the employees to stay home and quarantine for two weeks — after a single employee tested positive for COVID-19.
“We closed down the Naperville facility, sanitized the building and quarantined our employees for the safety of our customers and employees,” said Illinois Secretary of State spokesman Dave Druker. “Because we made the decision to close, the employees are being paid.”
But when some employees recently got sick at John H. Stroger, Jr. Hospital of Cook County, management handled things much differently, according to one staffer who wrote to Curious City.
“There are TONS of staff members testing positive for [COVID-19] and the higher-ups are being hush hush about it,” the Stroger staffer wrote, asking to remain anonymous for fear of retribution. “There is a very interesting stigma behind testing for [COVID-19] or being [COVID-19] positive. There also seems to be a fear of maybe losing employees and having more employees out at a given time? I’m not really sure but there is 100% lack of transparency within this particular health system (Stroger Hospital),” the staffer wrote.
This Stroger staffer wanted to know why she wasn’t being notified when co-workers tested positive for COVID-19 and she wanted to better understand what sorts of protections her employer was required to put in place in order to keep her from being exposed to COVID-19.
WBEZ has also spoken with employees at other workplaces throughout Chicago who have the same concerns and questions.
So this week Curious City is answering that hospital staffer’s questions and several others about COVID-19 in the workplace.
Does Stroger Hospital (or any workplace) have to tell staffers when their co-workers test positive for COVID-19?
“The answer is no,“ said Northwestern law professor Daniel Rodriguez.
And when WBEZ contacted officials at Stroger Hospital, they didn’t deny the employee’s accusations about infected staff and a failure to do contact tracing or notify co-workers about positive cases. Instead, they emailed back to say they follow the U.S. Centers for Disease Control and Prevention guidelines that, for example, say:
“Healthcare facilities should consider foregoing contact tracing in favor of … screening for fever and symptoms before every shift.”
Rodriguez says there is nothing in state or federal occupational safety rules that require an employer to notify employees when their co-workers test positive for COVID-19.
In fact, Chicago Department of Public Health (CDPH) guidance specifically warns against revealing any worker’s identity. The guidance does say, however, that businesses should “Ask staff and patrons to self-report if they are diagnosed with COVID-19 so that you can take the necessary steps to ensure the safety of others,” but these are just unenforceable recommendations.
Rodriguez says there are two main reasons why workplaces aren’t required to notify their employees about staff COVID-19 cases.
First, Rodriguez says, the federal Occupational Safety and Health Act, which governs workplace safety, doesn’t require telling staffers about an infected coworker, or “informing employees that they are at risk in some way” for COVID-19.
Rodriguez says this could be different if workers have a specific contract, like a union contract, that requires them to be notified about this kind of risk in the workplace, but most don’t. The second reason is that privacy laws, including provisions of the Americans with Disabilities Act, prevent the disclosure of employees’ medical information.
“And those privacy protections are awfully strict,” Rodriguez said. “So even if an employer wanted to provide you with information, they may be limited from being able to disclose.”
Overall, he notes that the current laws governing workplace notification are probably ill-suited to help stem the kind of infectious pandemic we are facing today.
“I mean, it’s one thing for our health and safety rules to say you have to have appropriate exits and ladders in the workplace…,” he said. “But infectious diseases have this quality that make them very difficult to protect against.”
Still, Rodriguez says there are things employers can tell employees to help keep them safer.
“Sometimes employers can and will overreact. I mean they will claim that this is a matter of employee privacy so we can’t tell you anything, when in fact, the best legal advice, not to mention the best ethical advice, is to tell the employees something consistent with the other employee’s health privacy, to give them some idea of what they’re encountering risk wise at work,” Rodriguez said.
This recently happened at Colectivo Coffee cafes in Wisconsin and Chicago, where workers asked to be told the location — but not the names of employees — where COVID-19 outbreaks happened. Now the HR department does give that kind of notification, employees told WBEZ.
Do employers need to inform anyone about COVID-19 cases?
The Chicago Department of Public Health asks employers to report cases to them when “2 or more COVID-19 cases are identified at your facility within 14 calendar days of each other.” But this is a recommendation, not a requirement.
CDPH does require the reporting of COVID-19 clusters (two or more cases within two weeks) in workplaces that fall under Title 4 licenses. These include places like “schools, jails, correctional facilities and adult transition centers (halfway houses), and all persons licensed or required to be licensed under Title 4 of the Municipal Code.”
Does an employer have to give an employee paid time off for testing and quarantine?
This depends on a few factors.
If an employer is covered under something called the Families First Coronavirus Response Act FFCRA (which includes most public and private sector employers with between 50 and 500 employees) and you become ill with COVID-19 symptoms, “you may take paid sick leave under the FFCRA only to seek a medical diagnosis or if a health care provider otherwise advises you to self-quarantine.” This means:
Can essential workers who have likely been exposed to COVID-19 continue to go to work?
“To ensure continuity of operations of essential functions, CDC advises that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.
A potential exposure means being a household contact or having close contact within six feet of an individual with confirmed or suspected COVID-19. The timeframe for having contact with an individual includes the period of time of 48 hours before the individual became symptomatic.”
This is one of the provisions that employers like hospitals and police departments rely on to keep their staff at work even after likely exposures to COVID-19 on the job.
Are essential workers entitled to workers’ compensation pay if they get COVID-19 on the job?
Probably. And it has recently become easier to secure due to a new amendment in Illinois. On June 5, Illinois Governor J.B. Pritzker signed HB 2455 into law. The law assumes that essential workers who test positive for COVID-19 contracted it on the job and are therefore entitled to workers’ compensation benefits, explained Magda Derisma of the AFL-CIO of Illinois, which pushed for the amendment.
“This expanded coverage is also retroactive to the start of the pandemic,” Derisma said.
The amendment supporting this presumption lasts until December 31, 2020 in the current legislation.
What do employers absolutely have to do to protect workers from exposure to COVID-19 in Illinois?
Under state and federal laws from the Occupational Safety and Health Administration (OSHA), employers have to provide workers with proper protective equipment and allow for social distancing in the workplace where possible. OSHA has recommendations that go above and beyond these minimum requirements, like developing procedures “for employees to report when they are sick or experiencing symptoms of COVID-19,” but the recommendations are not mandatory or enforceable.
Under executive orders from Illinois Governor J.B. Pritzker, employers, at a minimum, have to:
What should I do if I want to report a concern about COVID-19 policies in my workplace?
Illinois health and labor officials encourage workers to file a complaint through the Illinois Attorney General, Kwame Raoul’s office. A list of specific types of complaints and where to report them can be found here.
Complaints specifically about Chicago businesses can be reported to the Chicago Department of Business Affairs and Consumer Protection through the 311 City Services line.
Can we expect these COVID-19 workplace rules to change in the future?
President-elect Joe Biden has proposed tightening workplace COVID-19 safety rules and enforcement as one of his administration’s first round of actions next year.
The tightening would take the form of an Emergency Temporary Standard that the administration said is aimed at protecting essential workers by increasing OSHA staffers, upping reporting requirements and following up on more cases.
Monica Eng is a WBEZ reporter. Contact her at firstname.lastname@example.org.