The Occupational Safety and Health Administration requires employers to provide and maintain a safe workplace, so employers need to take steps to protect workers from exposure to COVID-19.
But if an employee tests positive for the coronavirus, the Heath Insurance Portability and Accountability Act requires that an individual’s health status be kept confidential, and the Equal Employment Opportunity Commission prohibits certain medical examinations and inquiries.
Employers caught between seemingly conflicting legal requirements due to the COVID-19 pandemic have been given some relief from new guidance issued by the EEOC, said attorney Adam Childers, co-chair of the Labor & Employment Practice Group for Crowe & Dunlevy. But as the situation evolves, employers will have to evolve their policies for the workplace.
“There’s essentially kind of a trade-off – we’re relaxing some of the standards that are meant to safeguard employee privacy, but it’s done overall for the good of employee health,” said Childers.
In March, the EEOC altered its guidelines to allow employers to take employees’ temperature, which previously would have been considered an unlawful examination. On April 17, the EEOC issued further guidance for employers. Though the law still prohibits discrimination based on race, sex, age, national origin, disability and other factors, the agency is allowing employers more flexibility in an effort to curb the spread of COVID-19.
“OSHA has made it clear that under employers’ duty to make sure they have a workplace that is free of potential harm and damage to employees, you are required to let others know if you have a positive test for an employee,” said Childers. Though HIPAA requires that an individual’s health status be kept confidential, other employees should be notified if they might have been exposed.
“You don’t have to reveal who that individual is, nor should you give that individual’s name, but you have to provide enough information that the affected employees will be aware of what steps are being taken by the employer and what steps they might want to take to protect themselves,” said Childers. “As a general rule, there’s usually enough information provided where people can at least make an educated guess and in a small workplace they pretty much know who that individual might be.”
Employers may now require employees have their temperature taken each day in order to report to work, and may keep records of the tests. However, the ADA requires that medical information about employees be stored separately from their personnel file.
“This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms,” reads the EEOC’s guidance.
Though there is no current requirement for employers to test for the coronavirus, the situation alters daily and in the future employers may choose to do so, said Childers.
“What I think will be interesting is those employers who choose to take it on themselves because they want to obviously open their doors as soon as possible, but more importantly be able to keep those doors open once they bring people back into the workplace,” said Childers. “That’s going to implicate a lot of different issues, not only issues of privacy and health but those who might object on religious grounds to the medical care. Or what happens later when there’s a vaccine – can you require that as a precondition to becoming an employee or remaining an employee?
“There’s a lot of challenges that will be out there, and I don’t think all the answers are in place, but the trend seems to be toward giving more involvement for employers in that process than they’ve had before,” said Childers. “We’ll see kind of how that plays out as this unfolds.”
Testing and contact tracing – which requires employees to share information about who they spend time with away from the workplace – are going to be critical elements of controlling the spread of the disease in the months to come, and would seem to encroach further on individuals’ privacy.
“Not that you put aside privacy altogether, I just think you’ll see a trade-off where there is going to be an expectation that employees are going to have to give up a little bit of their privacy,” said Childers. “Employers are going to have to inquire about things they might feel uncomfortable to ask about all in the name of public health.”
Employers should put in place policies for how employees may return to work after traveling or possible exposure, Childers said.