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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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Because the virus which causes COVID-19 can be spread from someone who does not exhibit any symptoms, individuals may not know that they have come into contact with the virus and may, themselves, be infected. Employers are doing what they can to gather and share as much information as necessary to stop the spread of the virus and keep their employees and work environments safe.&nbsp;The following summary is intended to help employers that have questions about whether they can require employees to report their medical conditions and/or whether they can disclose the identity of an employee or other person who is or may be infected with the virus.

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Q: If an employee self-discloses that he or she has tested positive for COVID-19, may an employer share that information with employees who worked in close proximity with that employee?

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A: Yes. However, the employer should share only that an employee who works closely with them may have been exposed but should not share the identity of the individual who tested positive.

Q: May the employer share that information with employees who did not work in close proximity with that employee?

A:&nbsp;&nbsp; Generally, yes, following the same guidelines. An employer should balance the desire to be transparent with the need to avoid panic. If the employer has multiple facilities, for instance, and the employee who tested positive had never been in any of the other facilities and had not otherwise had contact with individuals in the other facilities, there would be no need to disclose the information.

Q: Do the answers above change if the employee was not tested for COVID-19 but instead self-discloses that he or she came into contact with someone who tested positive for COVID-19?

A: No. The same procedures should be followed.

Q: If an employee exhibits symptoms suggesting that he or she might test positive for COVID-19, may an employer require the employee to provide proof of testing or medical treatment?

A: The employer can and should send an employee home if he or she exhibits such symptoms and can suggest that the employee seek medical treatment and be tested. The employer is then permitted to require a doctor’s certification that it is safe for the employee to return to work. Such inquiries are permitted under the Americans with Disabilities Act (ADA) either because they would not be disability-related (such as in the case of a seasonal influenza), or they would be justified under the ADA standards for disability-related inquiries for employees (in the case of a more severe pandemic).

Q: If employees disclose their symptoms, travel, or other health-related information to their employer, should they receive any formal notifications to how such data will be retained and used?

A:&nbsp;&nbsp; Yes, depending on the jurisdiction. Many data protection laws, such as the California Consumer Privacy Act and the General Data Protection Regulation (Europe), require employers to provide employees with formal notice regarding how their personal information will be collected, used, and retained. These laws and regulations likely apply when employees disclose to employers their symptoms, travel, or other health information related to COVID-19. Employers often satisfy such notification requirements through an Employee Data Privacy Policy, or data privacy disclosure forms provided to employees when any additional health data is collected from them.

Q: May an employer require employees to self-report symptoms of COVID-19?

A:&nbsp;&nbsp; Yes. As with the above scenario, such inquiries are permitted under the ADA either because they would not be disability-related (such as in the case of a seasonal influenza), or they would be justified under the ADA standards for disability-related inquiries for employees (in the case of a more severe pandemic).

Q: If an employee self-discloses that he or she tested negative for COVID-19, may the employer share that information with other employees?

A: Maybe. If the workplace in general did not have knowledge that the employee had been tested or had concerns about exposure, then there is no reason to circulate information about the negative test. However, if the employee had exhibited symptoms, openly discussed concerns about exposure, recently traveled to a high-risk area, or otherwise general concern, then it would be appropriate to share that information.

Q: May an employer look at its health plan claims to determine whether any person covered under the employer’s health plan was tested or treated for COVID-19?

A: Generally, no. Unless and until the law is changed to require such investigation, HIPAA prevents the health plan from sharing this type of information with the employer. However, if the spread of the virus becomes a serious and imminent threat to the health and safety of an employee or the employer’s workforce, the health plan may share a covered person’s medical information with the employer to help the employer prevent or lessen the serious and imminent threat. Employers should consult with legal counsel before attempting to obtain information from the group health plan.

Q: If an employer obtained and/or shared information about an employee’s medical condition before realizing that it was inappropriate to do so, must the employer treat that acquisition and/or disclosure as a data breach?

A: Possibly, depending on the circumstances. The incident should be evaluated under the applicable data breach notification law(s). The acquisition and/or disclosure would be treated as a HIPAA violation only if the employer obtained the information from the group health plan.

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID-19 Task Force</a> page for additional information and resources.

Deborah S. Brenneman 513.352.6638 <a href="mailto:Debbie.Brenneman@ThompsonHine.com">Debbie.Brenneman@ThompsonHine.com</a>

Steven G. Stransky 216.566.5646 202.263.4126 <a href="mailto:Steve.Stransky@ThompsonHine.com">Steve.Stransky@ThompsonHine.com</a>

Kim Wilcoxon 513.352.6524 <a href="mailto:Kim.Wilcoxon@ThompsonHine.com">Kim.Wilcoxon@ThompsonHine.com</a>

or any member of Thompson Hine’s <a href="https://www.thompsonhine.com/services/labor-amp-employment">Labor &amp; Employment</a> or <a href="https://www.thompsonhine.com/services/employee-benefits-amp-executive-compensation">Employee Benefits &amp; Executive Compensation</a> group.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/05/Frequently_Asked_Questions_about_COVID-19_and_Employee_Privacy.pdf

Frequently Asked Questions about COVID-19 and Employee Privacy

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