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Commonly Asked Employer Questions Regarding Employees During the COVID-19 Pandemic

An employee calls in sick to work. Can you ask them about their symptoms?

  • Yes, an employer may ask if an employee is experiencing COVID19 symptoms such as fever, cough or chills. All health information about an employee illness must be kept confidential. 
The EEOC provides the following in its flu/pandemic guidance: “If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.” Either way, this is permissible.
 

If an employee has COVID-19 symptoms, what should an employer do?
  • Send the employee home and have them contact their health care provider immediately. Ask the employee who he/she was in “close contact” with (as defined by the Center for Disease Control and Prevention “CDC” below). Inform all employees who were in close contact with the employee to self-quarantine for 14 days, without revealing the identity of the infected employee.
  • No employee should return to work until he/she is symptom-free for 24 hours (without the assistance of fever-reducing medications).  Employers may require a doctor’s note clearing the employee to return to work.  However, this may be difficult given the current pressures on the U.S. healthcare system.
  • According to the latest guidelines from the EEOC, conducting temperature checks on an employee is permissible during a pandemic. Note that temperatures are not always accurate measurements - an employee can have COVID19 without having a temperature, and an employee can have a temperature without having COVID19.

How is close contact defined?
  • The CDC defines “close contact” as follows: a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a healthcare waiting area or room with a COVID-19 case; or b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on).
 
Can an employer release the name of a person who has symptoms of COVID-19 or has tested positive for the virus?
  • No. This could violate the ADA and state privacy laws. All personal identifying information of the employee should be kept confidential.  Employees may agree to waive confidentiality, but must do so in writing.  Employers can inform other employees about possible exposure without revealing the personal identity of the infected employee. 
 
Should an employer inform their workforce if someone has tested positive?  What other steps should they take?
  • Yes, employers should communicate with their workforce early and often.  If someone tests positive, inform employees without revealing the identity of the infected employee. Communicate as well with those who may have been in “close contact” with the infected employee.
  • Depending on the setting of the workforce, employers may be required to shut down sites if an infected employee was in close contact with significant numbers of an employer’s workforce. This is a judgment call of the employer.  Employers must consider general objectives of keeping their workforces safe and preventing community spread.
  • Conduct a thorough cleaning/disinfecting process of any workspaces in which the infected employee may have been.
 
Does HIPAA apply in the employment setting?
  • No. HIPAA does not apply to most employers. HIPAA only applies to employer-sponsored health plans, health care providers and business associates of either. Regardless of whether HIPAA applies, employers are required to keep medical information about an employee confidential under the ADA and state privacy laws as discussed above.  Employers are encouraged to treat employee health information as if they are HIPAA-covered entities.
 
Guidance provided by Emma Follansbee, Associate Attorney at Mintz.
March 18, 2020