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Employer COVID-19 Screening Confidentiality

June 23, 2020

By Michael Burns, courtesy of SBAM Approved Partner ASE

As we enter the next stage of re-opening during the COVID-19 pandemic, employee screening is a critical event. Employers electing to screen employees in any number of fashions (temperature check, questionnaire, and more formal testing) all have an important responsibility – that of confidentiality.

It should be universally understood by now that employers doing medical screening have to maintain confidentiality of the information collected. All information obtained through testing must be kept on file separate from the employee’s personnel file.

The Equal Employment Opportunity Commission (EEOC) recommends the following in its FAQ’s:

“When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19?  (4/9/20)

As public health authorities and doctors learn more about COVID-19 they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic? (3/17/20)

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19do not have a fever.

May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID -19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)

Yes. The employer needs to maintain confidentiality of this information.

May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)

Yes.

May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19? (4/9/20)

Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.  Under the National Labor Relations Act, the National Labor Relations Board (NLRB) has ruled on a union’s right to access employee safety and health information.

The NLRB has ruled “a labor union can require an employer to provide it with all general company records regarding the health of employees as well as the generic names of all chemical compounds used in the plant. The Board takes the position that a union cannot be expected to bargain effectively regarding health and safety matters (mandatory bargaining subjects) if it does not know previously identified health problems related to the working environment or substances to which unit employees are exposed.”

According to the Board, confidential information is limited to a few general categories:

  • information that would reveal, contrary to promises or reasonable expectations, highly personal information, such as individual medical records or psychological test results;
  • information that would reveal substantial proprietary information, such as trade secrets;
  • information that could reasonably be expected to lead to harassment or retaliation, such as the identity of witnesses; and
  • information that is traditionally privileged, such as memoranda prepared for pending lawsuits 

Do HIPAA privacy rules affect OSHA recordkeeping requirements?

OSHA does not believe that HIPAA provides a basis for employers to remove employee names from the log before providing access. Even if HIPAA is implicated by the employer’s disclosure of the MIOSHA 300 Log, the statute and implementing regulation expressly permit the disclosure of protected health information to the extent required by law, as stated in 45 CFR §164.512(a).

This exception for disclosures required by law applies here because the recordkeeping rule in 29 CFR §1904.35(b)(2)(iv) requires that employees, former employees, and employee representatives have access to the complete log, including employee names, except for privacy concern cases.”

One note for employers with locations in Illinois – The Biometric Information Privacy Act should not impact this testing; however, it is recommended that these employers work with counsel to ensure compliance.  It can be a very expensive hit if a lawsuit arises.

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