When it comes to an employee’s medical and health information, employers are generally required to keep it confidential and may not share it with the employee’s co-workers. There is, however, an exception that is not often relevant, but is particularly so right now in the midst of this COVID-19 pandemic.
The exception generally provides that an employer may ask about, and even disclose information about an employee’s medical or health condition if the condition might impact the employee’s ability to do their job, or might put the employee’s co-workers at risk for contracting the illness or disease. But even this exception has its limits. Here are some things you can and cannot say, and can or cannot do.
1. You CAN ask an employee if they have had contact with someone who has been diagnosed with, or has tested positive for COVID-19.
2. You CAN ask an employee if they are experiencing symptom of COVID-19.
3. You CAN ask an employee if they have been diagnosed with, or have had a positive test for COVID-19.
4. You CAN ask an employee if they have a heightened risk for contracting COVID-19.
5. You CAN ask an employee to get tested for COVID-19 before allowing them on the business premises.
6. You CAN require employees to submit to no-contact thermometer scans before allowing them on the business premises.
7. You CANNOT apply the questions or requirements in 1-6 above to only certain classes of employees.
8. You CAN inform staff members if they have been exposed to a co-worker with a known case of COVID-19.
9. You CANNOT inform co-workers of the name of the employee who has been diagnosed with having the virus, unless the employee consents to the disclosure in writing.
10. You CAN ask an employee who is returning to work for a medical clearance letter, stating that they are now symptom free, and have had a negative test.
If you think about it, this exception to the general privacy rules makes good sense. An employer must do what it can to protect the safety of its workforce, without discriminating against protected classes, or allowing backlash against individual employees. If you have questions about how to handle COVID-19 issues in your workplace, contact attorney Anne Brown at 651- 738-3433.