COVID-19 and the public’s right to know: Should you be told if your server tests positive?

Sign Up For Our FREE Daily eNews!

It was business as usual Wednesday night at the Derryfield County Club. Photo/Carol Robidoux

Story Update: On July 30 The Derryfield Restaurant posted the following message on its Facebook page. They will close indoor seating Aug. 3 to deep clean the restaurant, according to the post:


Original post, July 29, 2020: MANCHESTER, NH – Six weeks ago the state updated its guidance for the reopening of restaurants, including protocols for training, education, masking-up and social distancing.

But there are no mandatory protocols for reporting to the state if an employee at a restaurant tests positive for COVID-19. There is also no requirement for public notification if your bartender or waiter tests positive.

Instead, the state health department will manage notification and contact tracing, as necessary.

It is a policy that does not make sense to some current and former employees who say they only found out that there was an issue via social media, as posts began to surface that at least one employee at the restaurant had tested positive, with several other awaiting test results.

Attempts to reach the Derryfield management for comment on Tuesday were unsuccessful.

However, on Tuesday servers were notified that they should be tested for COVID-19, according to several employees who did not want to be identified. And a patron of the restaurant who sat at the bar Saturday was notified Monday by a friend that their bartender had tested positive.

“I let my guard down,” said the woman, who did not want to use her name. “I have been careful but like a lot of people, I started to feel comfortable. That’s on me,” she said. The bartender who served her was not wearing a mask and she did not question it.

She said she called the state department of health on Wednesday they told her that they had already received several other reports about the Derryfield. She was told to self-quarantine for 14 days.

“They said they’d call me back, but so far I haven’t heard anything,” said the woman just before 6 p.m. on Wednesday.

When contacted on Tuesday the city health department declined to directly respond to a question about the Derryfield. Health Director Anna Thomas said, “…at the present time, there is no condition that the Health Department is aware of that warrants such action. If information were to become available to suggest that there is a risk to the public at large, the Health Department would take immediate action, including but not limited to, public notification.”

The Derryfield country club is operated under a public/private partnership between the city and a private LLC that runs the restaurant and function room. The municipal golf course is run by the city’s Parks and Recreation Department and generates about $700,000 in revenue for the city after operational and maintenance expenses according to the 2021 budget book.

Unlike in Massachusetts where there is strict guidance for restaurants, in New Hampshire it’s up to individual restaurant owners how to manage such scenarios.

On Tuesday the Tuckaway Tavern in Raymond voluntarily alerted the public through its Facebook page that one of their bartenders had tested positive for COVID-19 and they closed the restaurant as a precautionary measure, after consulting with the Centers for Disease Controls. On Wednesday they had the restaurant professionally sanitized and reported that so far no other employees had tested positive.

“We have had our entire building, top to bottom, fogged with an All-Natural Agent approved by the EPA for killing COVID both in the air and surfaces,” according to a Wednesday evening post.

In May the Dairy Queen on Main Street in Manchester closed temporarily after two employees tested positive for the coronavirus.

But because there is no mandate in New Hampshire, some restaurants are relying on the state health department to manage notification

Contacted Tuesday, Jake Leon of the state Department of Health and Human Services declined to comment specifically on the reports of positive tests by employees of the Derryfield Restaurant, citing Manchester’s jurisdiction within the city limits, but provided the following statement:

“We cannot confirm when an individual at a place of business or other entity tests positive due to concerns related to HIPAA and that individual’s privacy.

“Private entities including restaurants are encouraged to sanitize their facilities and notify their communities (staff, families, patrons, etc.) if there is a positive case connected with the entity. Contact tracing investigations help prevent additional spread of the disease by identifying anyone who potentially had close contact (within 6 feet for 20 minutes) with a person with COVID-19 and giving those contacts guidance on how to protect their health. If all close contacts cannot be identified, additional public communications may be warranted to protect the public’s health.

The novel coronavirus remains present and active in NH and community transmission continues to occur throughout the state, so there is an exposure risk when we are out. People need to follow public health guidelines, including social distancing, wearing a mask or face covering, frequent hand washing, and staying home and isolating if you are sick.”

New Hampshire, like most states, has no legal requirement that a restaurant shut down if an employee has tested positive for COVID-19. Massachusetts is one of the few states that has mandated that restaurants must close for at least 24 hours and disinfect the space in accordance with Centers for Disease Control guidelines after a “worker, patron, or vendor” tests positive for COVID-19.

Earlier this week Malachy’s Saloon in Quincy, Mass., announced it will remain closed until Aug 6. after one employee was confirmed to have COVID-19. The announcement was made by the city via it’s official Twitter feed, and part of the announcement included a request for help with contact tracing, citing the specific dates and time that the employee was working.

That kind of announcement was only seen in New Hampshire during the early onset of COVID-19. On March 13 the state announced that an employee of the Department of Motor Vehicles in Manchester had tested positive for COVID-19. That office was temporarily closed so that staff could be quarantined, and several dates and times were publicized detailing when that employee had been working so that anyone who might have had contact with her could notify the health department.

Privacy versus Right To Know

One of the emerging themes of COVID-19 that government officials, policy makers and the public must reckon with is our right to privacy versus the public’s right to know. Without a clear policy on how to manage COVID-19 in the workplace, businesses – including restaurants – must fend for themselves, says Tom Puskarich, owner of Restoration Cafe.

He has yet to reintroduce indoor dining because of the uncertainty.

“Nobody wants to be known as ‘the COVID place’ which in some ways would force a business to keep quiet. At the same time, I don’t want the government in my business or telling me what to do. It’s a matter of privacy versus the public’s right to know. The virus has challenged all of that,” Puskarich said.

There are legal and ethical considerations around how to proceed, says Puskarich.

Another downtown restaurant owner on Wednesday reported that the state liquor board, the health department and city fire officials “hit up every single business downtown” measuring table distances and checking for code violations under the current reopening guidance.

He assumed it was connected to the Derryfield situation.

“They said they will be back multiples times through the weekend,” said the restaurant owner who, like most of those working in the local service industry, declined to be identified for fear of repercussions for speaking up.

As social media swirled Wednesday night with rumors about a COVID-19 outbreak at the Derryfield, one employee said she would just like to hear first-hand from management.
“I work at the Derryfield and we haven’t been notified by anyone in management. Meanwhile, the younger employees are horrified they won’t be able to leave for college –  some play in basketball leagues and are scared they exposed teammates. It’s so crazy how Dairy Queen and Tuckaway just closed and put the information out there and kept people safe, and the Derryfield seems to be hiding it,” she said. “It’s all gossip through the staff at this point. Management should at least make a statement so we all know whats going on and if we are at risk.”
Below is the current guidance posted by the NH Lodging and Restaurant Association for it’s member organizations.

COVID-19 Guidance: If an Employee Tests Positive

If an employee tests positive for COVID-19, do I need to report it to the state?
No. The testing site will report the positive test to DHHS. A DHHS Response Team (or
the local health department depending on your municipality) will directly contact
individuals that have tested positive for COVID-19. The Response Team will describe to
that person the need to isolate or quarantine.

Do I need to notify other staff who have worked with an infected individual?

No. The Disease Investigator will ask all individuals who have tested positive a set of
contact tracing questions including who they may have been in close contact with and
who may have been potentially exposed. This begins the process that includes
identifying, assessing, and managing people who have been exposed to COVID-19 to
prevent further community transmission.

Do I need to ask staff who have worked with the infected individual to self-quarantine?

No. After a Disease Investigator obtains information from a contact tracing interview, a
Public Health representative will contact the potentially affected people and provide the
appropriate recommendations for testing and/or quarantine. The identity of the person
with COVID-19 is NEVER disclosed.

If only one employee tests positive at my establishment, is that considered an “outbreak”?

No. A workplace is not typically considered to have an “outbreak” until there are
approximately 3 related cases. In the case of a cluster of cases, public health will work
with the employer to provide additional guidance including assessing if there is a risk to
the public.

If there is an “outbreak” at my establishment, will the public be notified?

Not usually. Public Health typically does not publicly disclose workplace clusters unless
there is a risk to the public. Recently DHHS has made public the names of Long Term
Care facilities in outbreak status but those outbreaks were significant. Individual
businesses make their own decision about disclosing this information.
Promote, Protect, Educate.

Do I need to file a Workers’ Compensation claim if an employee tests positive?

If you are a member of the New Hampshire Hospitality Compensation Trust, we are
requesting that you file a First Report of Injury Form to have it on record. The Attorney
General recently issued an official opinion that employers who comply with CDC, State,
or industry guidelines are protected from employee personal injury claims for
contracting COVID-19 at the workplace. Contraction of the virus is considered a neutral
risk and therefore precluded from New Hampshire’s workers’ compensation law. This
opinion only applies to employees, not customers. (An opinion by the attorney general is
considered the law unless otherwise overturned.)

Should I notify the rest of my staff if another employee tests positive?

No. Although you may feel a responsibility to inform your staff to have them tested, it’s
also important to remember that employers must maintain the confidentiality of
employees with suspected or confirmed COVID-19 infection when communicating with
other employees. If any members of your staff are at an elevated risk of infection then
heath officials will contact them directly.

What are my responsibilities if an employee tests positive?

As the employer your responsibilities are as follows:
● Share knowledge of building layout with DHHS to assess risk.
● Provide team members contact information to DHHS
● Issue community or public messaging, if warranted.
● Support remote work or paid medical leave. Be aware of the Families First
Coronavirus Response Act and how it affects your business.
● If you are providing housing for an employee who tests positive, you need to
provide a safe location for them to live separately from others, including access
to essential supports such as food, laundry, and medication, as appropriate.

If I have specific questions surrounding a possible outbreak at my establishment, is there a number to call?

Yes, if you have specific questions please call 211 for more information.

Disclosure: These guidelines are based on best practices, state resources, and current guidance, and should be used in conjunction with
any state or federally issued guidelines. This is meant for the purpose of assisting in the creation of an establishment’s own COVID-19
response plan and is not a legal or state-issued document.

Pat Grossmith contributed to this report.

About Carol Robidoux 6560 Articles
Longtime NH journalist and publisher of ManchesterInkLink.com. Loves R&B, German beer, and the Queen City!