With the increase in COVID-19 cases in California and across the nation, employers are faced with a number of new challenges in the workplace, one of which is determining when employees may return to work after they have tested positive for the virus. Unfortunately, there have been mixed messages from state and federal authorities on this issue.

California’s Department of Fair and Employment and Housing (“DFEH”) released guidelines for employers about COVID-19 and the workplace, which were last updated in late July. The related FAQ indicates that, under the current circumstances, and in accordance with guidance from the Center for Disease Control (“CDC”) and the United States Equal Employment Opportunity Commission (“EEOC”), “employers may require employees to submit to viral testing but not antibody testing before permitting employees to enter the workplace…”

The DFEH guidance further indicates that decisions to allow employees to return to work may follow either a symptom-based, time-based, or test-based strategy. “Symptom-based strategy” refers to the elapsing of time following the cessation of symptoms, “time-based strategy” typically refers to the elapsing of time following an asymptomatic person’s confirmed result, and “test-based strategy” refers to requiring a person who previously tested positive to obtain a second, negative test result.

Also at the end of July, the state of California released the “COVID-19 Employer Playbook,” which provided some guidance on the minimum criteria for employees to return to work. That guidance stated that that symptomatic positive employees could return to work 24 hours after the last fever, without the use of fever-reducing medications, if there had been an improvement in symptoms and at least 10 days had passed since symptoms first appeared. This was also indicated in the California Department Public Health (“CDPH”) Order, issued in June, about responding to COVID-19 in the Workplace.

More recently, on August 24^th, the CDPH released guidance which reiterates when employees who have tested positive may return to work, as follows:

1. Individuals who test positive for SARS-CoV-2, the virus that causes COVID-19, and who have had symptoms, may return to work or school when:

1. 1. At least 10 days have passed since symptoms first appeared, AND
   2. At least 24 hours have passed with no fever (without the use of fever-reducing medications), AND
   3. Other symptoms have improved.

2. Individuals who test positive for SARS-CoV-2 who never develop symptoms may return to work or school 10 days after the date of their first positive test for SARS-CoV-2.

The recent CDPH guidance states that employers should follow a time- and symptom-based strategies and discourages employers from using a test-based strategy (i.e., requiring employees to obtain a second negative test result before returning to work).

Employers should also check local public health orders for their county when determining how and when to return to the worksite an employee who has recovered from COVID-19. It is important to also confer with your employment counsel when implementing new policies and procedures related to COVID-19, particularly given that the guidance issued by government authorities continues to evolve at a rapid pace.

Jackson Lewis is tracking national, state and local developments pertaining to COVID-19 in the workplace. If you have questions about developing policies and procedures related to COVID-19 and your business, contact a Jackson Lewis attorney to discuss.