By: Drew Sorrell
On August 6, 2020, Governor DeSantis’s Executive Order 20-192 removed the requirement for restaurant employees who tested positive for COVID-19 to test negative twice before returning to work. The new executive order allows employees to return to work so long as they comply with the current CDC return to work guidelines.
Given the difficulty of obtaining a test and timely results, the Governor’s adoption of CDC guidelines de facto shifts away from a testing approach to what is likely a more practical approach.
As of this writing, the CDC guidelines for returning to work require a person who falls ill with COVID-19 to be 10-days post onset, fever-free (with no medications) and all other symptoms “have improved.” Notably, the current CDC guidelines for persons only exposed to COVID-19 require quarantine for 14 days. As acknowledged by the CDC itself, these guidelines make it possible for a person “exposed” to be away from work longer than a person who is actually ill with COVID-19.
Further, the CDC does not definitively address what “symptoms have improved” means and as a factual matter probably cannot. Additionally, the current 24-hour fever-free requirement fails to prevent the over-eager return to work of a person whose fever breaks for 24 hours and then bounces back, as has happened. In comparison, previous CDC guidance provided a 72-hour fever-free requirement.
The Florida DBPR has explained in its FAQs for EO 20-192 that workers who never develop symptoms but test positive may return to work 10 days following their last positive lab test. Obviously, this answer remains a testing approach.
Interestingly, the DBPR FAQ provides that food service establishments should screen their employees by meeting them outside the establishment. At that meeting the employer, “shall evaluate the employee for obvious signs of illness and send the employee home if symptoms such as cough, fever, shortness of breath, sore throat or signs of a respiratory infection are directly observed.” Hopefully, the employer may also ask the employee if they are suffering from any of those symptoms, and not simply hope that direct observation reveals the employees sore throat, etc.
At this time, the State of Florida has not altered the workers’ compensation rubric for workers who contract COVID-19. On the other hand, the State of Florida has also not enacted immunities for employers/proprietors for suits filed by workers or patrons. In comparison, the Governor of the State of Connecticut has issued his Executive Order No. 7JJJ that gives rise to a rebuttable presumption that essential workers who contract COVID-19 did so as part of their work, thus providing workers’ compensation coverage.
The DBPR FAQ also provides answers to certain questions regarding restaurant operations and capacity; however, these all appear to be consistent with previous guidance. Half-capacity for in-door dining, six-feet distancing, and support for expanding outdoor seating where local law permits such.
If you have any questions or would like to discuss any of these issues further, please contact Drew Sorrell or the attorney with whom you regularly consult at Lowndes.
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