The Wisconsin Court of Appeals recently held that verbal disclosure of an employee's COVID-19 status does not constitute a violation of Wisconsin health care record disclosure laws or a cause of action for invasion of privacy. The court's decision in Mosley v. Oakwood Lutheran Senior Ministries dismissed the employee's claims against her employer and addressed the importance of distinguishing what constitutes a breach of privacy during a public health crisis.
The employee worked in food services for a nursing home provider in Madison, Wis., during the early stages of the COVID-19 pandemic. She reported to work in June 2020 and underwent the employer's COVID-19 screening process. In response to the employer's screening questions, she stated that she had experienced COVID-19 symptoms. As a result, her supervisor denied her entry to the workplace and instructed her to undergo a COVID-19 test. The test confirmed that she had contracted the virus. The employee's supervisor subsequently received a copy of the test results.
The employer announced an employee's positive COVID-19 case through a memorandum, but did not identify the employee's name. Following the memo's release, the employee received a social media text message from a co-worker indicating that a supervisor shared information about her COVID-19 status. After she returned to work, other employees inquired about her experience with COVID-19. The employee alleged that a supervisor likely disclosed her test result to other employees without her authorization.
The employee subsequently filed a lawsuit against her employer and raised claims for violations of Wis. Stat. § 146.82, pertaining to the release and redisclosure of patient health care records without proper authorization, and an invasion of privacy claim.
The Court’s Analysis
The Wisconsin Court of Appeals affirmed the circuit court's decision to grant the employer's motion to dismiss all claims.
The court found that the employee failed to state a claim for invasion of privacy. The employee's claim was fatally flawed because the private matter made public at issue in the case would not be "highly offensive to a reasonable person of ordinary sensibilities."
Under the circumstances of the pandemic, "a positive COVID-19 test result [was not] the type of information that would prompt a reasonable person to become seriously aggrieved by its disclosure, given the highly contagious nature of COVID-19, its transmission through everyday interactions, and the widespread, voluntary disclosure of positive test results," the court wrote. A claim under Wis. Stat. § 995.50(2)(am)3, providing a cause of action for invasion of privacy, requires that the disclosed information be "highly offensive," not merely "offensive."
The court also concluded that the employee's claim for release or redisclosure of patient health care records failed. The court relied on the "plain language" of Section 146.82 to dismiss the employee's claim under that statute. The statute's language requires actions supporting a claim to include release or redisclosure of patient health care records. The employee did not allege that a supervisor released or redisclosed an actual record. Instead, the employee alleged that her COVID-19 test result was verbally communicated to other employees. The court concluded that verbal communication, absent transfer of any record, does not violate Section 146.82.
Takeaways
The decision in Oakwood Lutheran Ministries provides employers guidance under Wisconsin law when employee information concerning a communicable disease is released to others in the workforce. The court's rationale concerning communication that may be highly offensive to a reasonable person may be instructive when an employer entertains disclosure of certain information to protect other employees. The court's decision also confirms that verbal communications, absent transmission of actual records, does not provide grounds for violation of Section 146.82.
Jesse R. Dill and Fefe Jaber are attorneys with Ogletree Deakins in Milwaukee. ©2023. All rights reserved. Reprinted with permission.