Luke Whetstone: Navigating Privacy Concerns in a Pandemic

Now that much of the workforce is returning to the jobsite, employers and employees alike have questions about the rules and regulations that apply.  A major source of questions has been the Americans with Disabilities Act (ADA) and its privacy rules.  As a starting point, one of the main questions employers have that falls within the scope of the ADA is whether they can ask an employee if they have COVID-19 symptoms.  Employers are understandably concerned that asking about an employee’s medical condition, even in a pandemic, may be problematic.  But, the general answer is yes; ADA-covered employers may ask employees if they are experiencing COVID-19 symptoms (such as fever, chills, cough, shortness of breath, or sore throat).  The ADA also does not prevent an employer from measuring an employee’s body temperature.  However, on a practical note, employers should be aware that some people with COVID-19 do not have a fever.

Once an employer has COVID-19-related information about his or her employees, the next question is what can be done with the information.  Employee information related to COVID-19 is treated similarly to other employee medical information.  That means that employers must maintain the information as a confidential medical record.  This includes an employee’s statements about having or suspecting that he or she has the disease, as well as the employer’s notes from questioning an employee about symptoms. 

The Center for Disease Control and Prevention (CDC) has stated that employees who arrive to work ill or who become ill with symptoms of COVID-19 should leave the workplace.  The ADA does not interfere with this advice.  Following a confirmed COVID-19 case, and as recommended by the CDC, employers should notify all employees who work in the location or area where the employee works.  Notification should be done without revealing confidential medical information, including the employee’s name.  However, an employer may obtain the employee’s signed authorization to disclose their diagnosis. Employers should also notify any third parties that may have been exposed to the infected employee.  The other employees and third parties should also be informed of the actions taken by the employer, including requiring employees who worked closely with the infected worker to go home and the employer’s sanitizing and cleaning efforts.  Employers are also advised to remind their employees to seek medical attention if they exhibit symptoms.

Regulations and guidance surrounding COVID-19 are constantly evolving and adapting to the changing reality on the ground.  All employers and employees should familiarize themselves with the latest guidance from the CDC.  Those with additional questions should consult with an attorney.

Luke D. Whetstone is an attorney at Cook, Yancey, King & Galloway, A Professional Law Corporation. He is licensed to practice law in Louisiana and Arkansas and his practice includes compliance, litigation, and labor and employment. This article is for information purposes only and does not constitute legal advice.

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