With health officials reporting an increase of COVID-19 infections in California, and more workplaces re-opening, employers might currently, or soon, experience the complex situation of having an employee test positive for COVID-19. When this situation does occur, an employer will have to grapple with protecting the privacy of that worker’s medical information while also securing the safety of their workplace from a possible COVID-19 outbreak.
In accordance with the American with Disabilities Act (ADA) workers are granted protections in regard to the privacy of their medical information. However, during the COVID-19 crisis employers must find a way to uphold those protection while still ensuring that they follow practical safety measures in the workplace. Therefore, to accomplish both, many businesses are following the guidelines issued by the Central for Disease Control (CDC) as well as the guidelines issued out by the Equal Employment Opportunity Commission (EEOC) in their guidance document titled, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.”
The EEOC urges employers to heed the advise given by the CDC which states that if a worker is diagnosed with COVID-19 the employers should inform their workplace only of possible exposure. The CDC does not advise that an employer must share the identity nor the diagnosis of the individual who tested positive for COVID-19, only that the presence of the virus has been and can still be present in the workplace. Moreover, even if workers might realize which employee is COVID-19 positive, employers must refrain from confirming that worker’s identity. In allowing for privacy to remain while still informing the workplace of exposure to COVID-19, workers might then feel more open to disclose their symptoms or diagnosis to their employers.
David Fram, Director for equal opportunity services at the National Employment Law Institute, further clarifies that an “employer cannot disclose any employee’s medical information to anyone under limited circumstances. But if the employer tells workers that they might have been exposed to somebody with COVID-19, that’s not disclosing that person’s medical information.”
The only place employers can disclose information about a worker’s COVID-19 diagnosis is to public health agencies.
Even with businesses informing workers of possible exposure to COVID-19, many businesses are further protecting their workers through contact tracing. Companies like General Motors and Ford Motors have instituted their own contact tracing programs whenever an employee tests positive for COVID-19. Currently, many more companies might soon follow in General Motors and Ford Motors’ footsteps and implement their own contact tracing programs as more workplaces are re-opening at greater capacities. However, even with contact tracing, employers must still protect the privacy of their workers and not disclose the identity of the worker who tested positive for COVID-19.
Recently, in workplaces where the above protections are not being implemented, incensed workers have taken their employers to court for not alerting them of COVID-19 exposure and for not following more safety measures. Employees at Amazon filed a lawsuit demanding the company to adopt their own contact tracing as well as more safety measures at a Staten Island facility. Similarly, employees from McDonalds have also filed a lawsuit in Chicago that demands for more COVID-19 safety protocols, like providing workers with face masks.
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