As more test kits become available for COVID-19 and an increasing number of people are tested, there will be more positive diagnoses. Because of COVID-19’s rapid community spread, many employers will soon see positive diagnoses of their own employees. If an employee tests positive for COVID-19, an employer may want to limit workplace exposure by notifying its other employees of the positive diagnoses.
Generally, an employer may disclose a positive diagnosis of COVID-19 to employees, but must do so in a way that does not identify the infected employee. A combination of federal privacy laws prevent an employer from disclosing the identity of an infected employee without authorization.
Health Insurance Portability and Accountability Act (HIPAA)
Although the Department of Health and Human Services recently announced a limited HIPAA waiver of certain penalties for noncompliance with the certain provisions of the HIPAA Privacy Rule, that waiver only applies to hospitals within areas covered by public health emergencies that have implemented their disaster protocols. Employers may be subject to HIPAA if they are the sponsor or administrator of self-insured health and wellness plans. If the employer acquired information relating to the infected employee’s diagnosis in its role as administrator of the health plan, then HIPAA prohibits the employer from disclosing the employee’s positive COVID-19 diagnosis to other employees.
Americans with Disabilities Act (ADA)
According to the EEOC’s recently updated Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, during a pandemic, information about an employee’s positive COVID-19 diagnosis (even though not disability-related) should be treated as confidential medical records in compliance with the ADA. Additionally, if an employee is experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat, but does not test positive for COVID-19, any information about the employee’s illness must also be maintained as a confidential medical record in compliance with the ADA.
Family and Medical Leave Act (FMLA)
The expanded FMLA leave protections for COVID-19 provided by the Families First Coronavirus Response Act (HR 6201) will prompt many employers to ask if an employee is taking FMLA leave for reasons related to COVID-19. If an employee takes FMLA leave because of their, or their family member’s, positive COVID-19 diagnosis, the FMLA prevents employers from disclosing the diagnosis of the employee, or their family member.
If an employer has authorization from an infected employee, they may disclose the infected employee’s identity to other employees. The infected employee’s authorization must be truly voluntary. An employer may ask the employee for authorization, but if the employee declines, the employer cannot disclose the employee’s identity.
Even if an infected employee does not give the employer authorization to disclose their identity, the employer may still make a general disclosure to inform other employees that an employee tested positive for COVID-19. The disclosure cannot (i) specifically identify the infected employee by name or (ii) provide any information that would allow other employees to identify the infected individual. Employers should also make reasonable efforts to limit the information they disclose to the minimum information necessary to accomplish the purpose of the disclosure.