With COVID-19 exposure being top of mind for employers and employees who are returning to work, you may be concerned about medical privacy rights in the workplace. While many people may assume that private health information is protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), this is not exactly true. HIPAA only applies to health plans, health care providers, and other entities that deal with health matters. Unless you’re one of those organizations, certain health information may not be as private as you think. The following information will help you understand the complexities of workplace privacy in the context of the current COVID-19 health crisis.
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What health and medical privacy rights do employees have in the workplace?
While an employer cannot access an employee’s direct medical records, there are still numerous ways they can obtain medical information, including on health insurance forms, workers compensation claims, and even requests for sick days. Typically, an employer may not share these details with other team members–however, an exception can be made when there is a concern which impacts the business operation or has an impact on other employees.
Generally speaking, employers may inquire about and disclose information related to health conditions that might impact an employee’s ability to do their job or which might put other employees in jeopardy of contracting an illness or disease. That said, it is still important to comply with privacy regulations when sharing information more broadly. This can include asking for consent before identifying an employee by name. If you have questions about a specific scenario related to COVID-19, ask a lawyer.
Can I ask about an employee’s COVID-19 diagnosis or health status?
In a word, yes. Employers may ask an employee whether they:
- Have been diagnosed or have had a positive COVID-19 test result
- Have symptoms of COVID-19
- Have had contact with someone with a diagnosis or positive test within 14 days
- Have been directed to self-quarantine
- Are considered to be at a high risk for contracting COVID-19
Having employees fill out a screening form is one way to collect this information across the board. It is important that you request this information consistently and not single out a specific class of employees.
Can I require an employee to take medical tests?
As an employer, you can condition a new hire offer on passing a physical examination. This assumes that everyone who is currently working in a similar position also is required to take the same medical tests. After hiring someone, however, it gets more complicated.
If your insurance company requires a level of medical examination before approving a new member to the health plan, that is acceptable. However, unless there are business reasons for medical testing or everyone in the company is required to take a specific medical test (such as tuberculosis testing of nursing home staff), then it is probably not allowed.
Although it could put a strain on local testing resources, you may ask employees to be tested for COVID-19 before allowing them to be on site. Again, keep in mind that employers cannot single out a class of employees for such testing. Outside of testing for the virus, employers may also ask employees to perform temperature screens at home or submit to a no-contact thermometer scan before being allowed onto the premises. In several states and localities, temperature screening is required for some or all employers. To understand what’s allowed or required in your area, ask a lawyer.
Am I required to disclose an employee’s COVID-19 diagnosis to my entire staff?
For the health and safety of your team, you should be disclosing this information to other staff members, especially if you know they have had contact with the individual in question. However, you should not disclose the name of the infected employee unless they give direct consent for you to do so. Under the Americans with Disabilities Act (ADA), there is an allowance which provides employers the authorization to inform employees of any disease posing a direct threat to their health. Since COVID-19 is highly contagious and can have deadly consequences for those who have underlying health conditions, it would be covered under the Act.
Are employees required to disclose COVID-19 or other diagnoses to their employer?
Generally speaking, yes. As an employer, you have every right to inquire as to whether an employee:
- Has been exposed to someone with a positive diagnosis of COVID-19
- Is living with someone who is experiencing symptoms
- Has received a diagnosis or has symptoms
Once this information is obtained, you may share exposure or a verified diagnosis with your other employees and insist the employee work from home or remain home until they are no longer symptomatic. However, keep in mind, unless you have permission from the employee, you should not share their name with other employees.
As an employer, you also have the right to request an employee who is returning to get a medical clearance first. In general, this would entail a doctor’s verification that the employee has had a negative COVID-19 test and has been free of symptoms for a specific number of days.
Ask a lawyer
Should you have any questions about the employee privacy guidelines that apply to your business, you can get answers from an attorney for free in the Coronavirus Legal Center.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.