What Employers Need to Know About Employee Privacy in the COVID-19 Era

Most employers in the U.S. found themselves in a tough spot: On top of risks posed by the COVID-19 pandemic, compliance with their state’s stay-at-home order, and switching to remote working, they must also have employee privacy rights in mind.

But how should employers handle information regarding their workers’ coronavirus exposure without breaking any privacy and employment laws? Can employers collect any information related to COVID-19 from employees and then disclose that information to others?

COVID-19 and Employee Privacy 

It is critical to comply with privacy and employment laws even during these unprecedented times. Thus, employers should always notify the affected employee of their need to make certain disclosures to co-workers, customers, and other individuals with whom the employee came in contact in the past two weeks in the course of their employment. In this context, the “affected” employee is the employee who was exposed to or tested positive for COVID-19.

But whom should you, as an employer, inform if your employee(s) tested positive for the coronavirus disease? More importantly, can you reveal the employee’s identity in this situation?

Disclosing Employee’s Positive COVID-19 Test 

While it is true that an employer is required to notify other employees that their co-worker tested positive for COVID-19, it should be done without disclosing the affected employee’s identity.

An employer is prohibited from disclosing the identity of their employee who has tested positive for the coronavirus disease. Besides, it is also illegal to disclose any information about the affected employee’s medical condition and even symptoms to other employees. Under the 42 U.S. Code § 12112, any information about an employee’s medical condition, history, or symptoms that their employer collects as part of an examination or inquiry can be disclosed only in limited circumstances.

Under the Family and Medical Leave Act (FMLA), employers are prohibited from disclosing any records or information related to an employee’s medical history or condition in connection with their leave request or eligibility.

Do Employers Need an Employee’s Consent to Disclose Coronavirus-Related Information? 

An employer may ask an employee:

• whether he or she would agree to disclose their symptoms or positive COVID-19 test to others; or
• whether he or she would be comfortable with the employer’s disclosure of this information.

However, when doing so, employers should not put any pressure on the employee. Any disclosure of identity regarding the affected employee’s exposure to or positive testing for COVID-19 should be voluntary.

Employers should ask the affected employee to provide a list of individuals, including their co-workers, customers, and others, with whom he or she came in contact in the last 14 days in the course of employment. This information can be disclosed to the affected individuals without disclosing the identity of the employee who tested positive for COVID-19.

Regardless of whether you can get your employee’s consent, you must notify the affected individuals, including customers and co-workers, who came in contact with the affected employee in the past 14 days, informing that they should take appropriate measures (e.g., self-isolation or getting tested for coronavirus).

It is advised to talk to a West Palm Beach employment law attorney if you are an employer whose employee tested positive for COVID-19. Our attorneys at Pike & Lustig, LLP, will review your particular situation to make sure that you do not violate employee privacy rights when disclosing coronavirus-related information. Call at 561-291-8298 for a case review.

Resource:

eeoc.gov/policy/docs/fmlaada.html

https://www.turnpikelaw.com/how-an-flsa-audit-can-help-protect-employers-from-liability/