The employee was contacted by his employer to advise that an unidentified coworker had been diagnosed with COVID-19. He is one of several who had close contact with this coworker. This employee asked for a claim form. Both his personal doctor and the workers’ compensation doctor denied his request for a test as he does not have the symptoms. The employee is currently self- quarantined, remains asymptomatic. The employer has recently confirmed that the co-worker is positive for COVID-19. My question is, what if the symptoms come about after the incubation period of 14 days and it is determined that he is positive for COVID-19. The employee claims that he’s been self-quarantined the entire time. Might the employer have liability?

First, I appreciate the fact that the infected co-worker has not been identified to his/her co-workers. Maintaining the infected individual’s privacy is a must. Federal and state law apply here, including the FEHA.

Turning to your questions, the employer should provide him with a DWC-1 claim form.

Secondly, if he does later test positive for COVID-19, the employer might have liability. However, the timing of the positive test date and result is a very important part of this analysis because:

• If he takes the test within the 14-day period of last being near that co-worker or at the employer’s worksite, and it shows “positive,” then the employer’s probability of being liable is very high. This is because the employer placed him in a “zone of danger.”
• But if he tests positive more than 14 days after the last exposure to that coworker or the worksite, then the employer’s probability of being liable is decreased. This is because of the standard 2-3 week period associated with this disease. So let’s say he tests positive 25 days after the date of last exposure – then the employer has a much stronger case of denying liability.

Regardless of when he tests positive, I’d recommend doing a strong and very detailed factual investigation. Many questions should be posed, such as:

• Who does he live with?
• Any positive test results there?
• How often did he go to the grocery store?
• Did he go to the pier, park, or play basketball on those nice warm weekend days?
• When did symptoms begin?
• Any night sweats, or cold sweats?
• Any really minor symptoms?
• If so, when did those start?
• Did other co-workers get infected?
• Did he have to work with them?

Many more potential questions have been identified in our seminar “The Pandemic, the Claims Desk and You: How Will COVID-19 Impact W/C?”, which is available on our website, as is the PowerPoint containing all of the recommended questions.

Please remember that each case of this will turn on facts like that in the investigation.