Handling Positive Coronavirus Cases Is The Next Frontier In Returning To The Office

As many companies grapple with how — or if — they should bring their employees back to the office, planning for positive coronavirus cases is emerging as a crucial part of the strategy.

Contact tracing technology, which employees will be informed and how are all now part of the conversation, raising myriad questions around privacy protection and legal liabilities.

“I think it’s something that you know will happen. It’s not if, it’s when and you have to prepare for it,” PwC Advisory Real Estate Director Katherine Huh said.

Her firm, she said, has helped hundreds of companies create return-to-work plans.

“The only thing you are trying to wager is how many cases, and how soon … There are legal things to consider, as well as the flow of business.”

Some real estate executives and politicians are pushing for companies to bring their workers back to their desks, as a way to help New York heal from the economic pain of months of stringent stay-at-home orders. Still, while major landlords like Silverstein Properties, RXR Realty and SL Green have all returned to work, many of their buildings have been at least 70% empty post-Labor Day, as Bisnow reported earlier this month.

What would have once been peak commuter hour in Manhattan was quiet Monday morning. Few travelers were boarding the subways at key hubs like 42nd Street Times Square and World Trade Center; Midtown’s sidewalks, which would normally be crammed with workers, were spacious and quiet. A handful of masked workers were trickling into buildings.

Though cases have plummeted since the worst of the crisis in New York, the positivity rate across the state rose to just over 1.5% on Sunday, officials have said, a marked jump from previous weeks. “The virus isn’t tired,” Gov. Andrew Cuomo said, per the New York Times. “It’s no time to get tired.”

And the issue of cases in workplaces was put into the spotlight in the last few weeks with Goldman Sachs and JPMorgan — both banks that have indicated a commitment to phase out of remote work — reporting positive cases amongst the workers. Some JPMorgan traders were reportedly annoyed that they learned of the cases in their building from press reports, CNBC reported. The bank told the outlet its policy is only to inform those who were exposed to someone sick.

Representatives for JP Morgan declined to provide information on its handling of outbreaks. A spokesperson for Goldman Sachs said the company alerts people on the same floor as anyone who tests positive for the virus, along with “close contacts.” The floor in question will undergo a deep clean, the spokesperson said in an email.

Other banks are also looking at moving beyond remote work. A Bank of America representative told Bisnow “the majority” of the workforce is still working from home but the plan is for a phased return to work, though employees do not need to return if they do not feel comfortable.

Two requests Bisnow made for specifics on the plan if workers test positive to the virus did not get a response.

Huh said the cost of deep cleaning a floor can be around $50K, so savvy companies are putting their resources into ways to trace employees effectively.

“They try to make sure they reach out to everyone, they communicate to the whole company so it’s not a big secret,” she said.

Multiple companies have developed their own apps to allow them to reopen the workplace. RXR Realty, for example, has rolled out an app for employees and tenants that allows them to do a daily health check and monitor infection numbers.

Employees at RXR carry a small device that will buzz if they go within 6 feet of someone else and provides a score to individuals on how well they are performing in their social distancing. If there's an outbreak, the app will tell the company exactly who has been in contact with the virus and enable those people to work from home without major disruption.

But apps like these, and even more low-tech notification protocols, run up against privacy concerns, and Huh said privacy is becoming a big issue for companies.

“Many employers now need to incentivize their employees to tell them the truth,” she said, adding that each employer is weighing closely whether or not they are putting themselves at risk of opening themselves up to legal liabilities if there is a case of the coronavirus.

“The other big consideration is getting sued,” she said.

Barasch McGarry partner Michael Barasch, an attorney who represented thousands of people who became ill as a result of the 9/11 air toxins, said in an interview that though this pandemic is “uncharted territory,” he believes that as long as employers were following New York State Department of Health regulations there shouldn’t be any liability in the event of an illness.

“If there is an outbreak, that changes the whole thing; then they have to quarantine everyone, and then there will be liability if they don't comply again with the Department of Health Rules and Regulations,” he said.

Guidance from New York state stipulates that employers must tell the state and local health department immediately if they are informed of a positive COVID-19 case in the office. Employers must comply with the state and local health departments as required to trace all contacts in the workplace. Confidentiality must be maintained per federal and state law and regulations, and employers may not keep records of employee health data.

“Employers should also use common sense to exceed the legal requirements where appropriate,” Barasch said in a follow-up email.

“An employee with a pre-existing condition (or who lives with someone with a pre-existing condition) should have the opportunity to work from home. If someone at the office contracts COVID-19, it might be best to close the office temporarily for deep cleaning and to enhance safety protocols after people have returned.”