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By Gary A. Matthews and Michael A FryeOf Jenkins Fenstermaker, PLLC on 08/21/2020
WV COVID-19 Isolation Notices for Employers

In a year of firsts, August 2020 has brought another one to West Virginia (WV) employers: WV COVID-19 isolation notices. Across the state, employers seek to comply with a variety of new laws providing protections regarding pandemic-related worker leave and pay while maintaining business operations. To add to the pile, some employers have begun receiving notices from their local health departments, informing of an employee who must quarantine or isolate due to exposure to or diagnosis of the novel coronavirus. West Virginia employers need to understand what an isolation notice means for them and how to proceed through this uncharted terrain.

What Are WV COVID-19 Isolation Notices?

In late July and early August 2020, some West Virginia county health departments began serving employers with employee isolation notices. These notices are intended to inform the employer when an employee has been exposed to or diagnosed with COVID-19. The form notice document was provided to the local health departments by the WV Department of Health and Human Resources (WVDHHR). It describes in general terms the nature of the 2020 pandemic and provide instructions for self-isolation, specifically noting that individuals awaiting COVID-19 test results should be treated as if they have the virus until test results show otherwise.

Presumably, the isolation notices are intended to advise the employer of an employee’s COVID-19 status so that the employer can make appropriate arrangements for the employee’s leave, ensure that the employee does not return to work prior to the end of the quarantine period, and take precautions to protect other employees from exposure.

The health department notices ask the individual named on the notice to quarantine. The notices also include the following information:

  • A statement that the health department has instructed the named individual to stay home from work or school to prevent transmission of the virus;
  • A checked box to show that the named individual meets one of these criteria:
    • Has a presumptive or confirmed diagnosis of COVID-19;
    • Is awaiting test results for COVID-19;
    • Has been identified as a close contact of a suspected or confirmed case of COVID-19; or
    • Is providing care for a person with a suspected or confirmed case of the coronavirus.
  • The individual’s starting date for quarantine;
  • The anticipated date on which the named individual will be released from quarantine; and
  • The name and signature of the named individual’s health care provider

Consequences for Ignoring a WV Employer Isolation Notice

A county health department’s authority to issue quarantine or isolation notices comes from WV Code § 16-3-2. The statute provides that “every person” who fails or refuses to comply with a county health department order meant to prevent the spread of an infectious disease (like COVID-19)—and those who refuse to obey the county health department in enforcing such orders—will be guilty of a criminal misdemeanor and may be fined up to $200. In short, there are criminal and financial consequences for anyone—employer, employee, or otherwise—who fails to abide by county health department orders like WV employer isolation notices.

The criminal and financial exposure may seem minimal compared to the impact on a business facing the absence of key or multiple employees due to COVID-19 exposure or diagnosis. But employers should tread carefully—the stakes would increase dramatically if the fines were multiplied by the number of employees and the number of days of violations.

Problems with WV Employer Isolation Notices

The decision of whether and when to issue an isolation notice falls to the county health department, but county health departments across the state do not appear to be handling these matters uniformly. Some county health departments have issued a WV employer isolation notice after confirming an employee’s COVID-19 exposure or diagnosis. Others are making in-person home visits to inform the employee of exposure or diagnosis but are not issuing written isolation notices. Still other are leaving it to the employee to notify the employer of his/her COVID-19 status.

In addition to these inconsistencies across the state, some county health departments may be providing inaccurate information. By way of example, advice from a county health department that returning to work would be fine after a negative test for COVID-19 instead of waiting out the entire quarantine period identified in the notice, could be inaccurate. Consider the following example:

  • Day 1: An individual is exposed to COVID-19
  • Day 3: The individual learns of the exposure
  • Day 4: The individual gets tested for COVID-19
  • Day 6: The Day 4 test results are returned as negative for the virus
  • Day 7: The individual develops COVID-19 symptoms
  • Day 8: The individual takes a second COVID-19 test
  • Day 10: The Day 8 test results confirm the individual has COVID-19

In other words, testing done early in the incubation period may produce a false negative. As such, any advice or counsel regarding quarantine or isolation periods need to be determined on a case-by-case basis. This leaves employers and employees between a rock and a hard place, facing potential liability for failure to wait out the term on an isolation notice versus getting a coronavirus-negative employee back to work.

Where to Turn for Help with WV COVID-19 Isolation Notices

Employers in West Virginia face an uphill battle to remain compliant with pandemic circumstances and resulting statutes and regulations that seem to change almost daily. WV COVID-19 isolation notices are no small matter in the big picture. Employers seeking guidance on isolation notices, other COVID-related regulatory questions, or just general business and commercial issues turn to experienced West Virginia employer attorneys Gary Matthews or Michael Frye at Jenkins Fenstermaker, PLLC. Serving employers in business and commercial as well as labor and employment across the state, Gary and Mike provide sound guidance on pandemic matters as well as ongoing business, labor, and employment needs. For a consultation, please call (304) 523-2100 or complete the firm’s online contact form.