How to Safeguard the Privacy of Workers with COVID-19

​The tension plays out in workplaces across the country: An employee calls out sick and tests positive for COVID-19. Company leaders inform their co-workers that they have been exposed to someone who has the dreaded disease.

But sometimes anxious employees want to know the name of the sick person to gauge their own risk. 

Lawyers counsel employers to guard the privacy of the sick employee and not divulge the name. But it's a delicate dance, protecting the privacy rights of the sick person while safeguarding other employees.

Federal guidelines require employers to notify people at risk and contact their local health department. That may be easier said than done.

"An employee will say, 'I am sick' or 'my wife is sick.' The employer will ask the person, 'Who do you work with? Who did you spend time with at work?" said David Barron, a labor and employment lawyer at Cozen O'Connor law firm in Houston. "Recalling who you talked to in the last few days in an office is a hard thing. Employees don't trust that the companies will get it right."

Tensions can arise because other employees don't always trust that the company will recall all the interactions and might inadvertently minimize the risk to them. But don't put out an all-staff e-mail, asking if anyone has interacted with the sick person. Disclosing that person's name may violate state privacy laws and possibly the federal American with Disabilities Act (ADA), Barron said.

Barron suggests that employees who still come into the office limit the number of interactions they have. "If you work in the shop, you shouldn't be in the office. If you work in the office, you don't take lunch with your office friends. You don't want people wandering around the facility."

Employment lawyers are also examining whether a person sick from COVID-19 could be considered disabled and thereby protected under the ADA. Peter Shapiro, an employment lawyer with Lewis Brisbois Bisgaard & Smith in New York City, said the ADA can sometimes apply in cases of temporary disability. "Someone with COVID-19 could be considered disabled. You want to be discreet in discussing disabilities and discussing a particular employee's condition with others. If you are unnecessarily telling other people and creating adverse conditions, I could envision a claim from a creative plaintiff employee out there."

The confusing and changing information about the novel coronavirus brings to mind the early days of the AIDS epidemic, Shapiro said. "People had misconceptions about how contagious people were with AIDS. Something similar could happen here. Hopefully people will realize that it's a temporary condition and once you are better, you are better. But there is a lot of misinformation out there."

Checking Temperatures

As much as companies need to protect an employee's privacy, they also have to keep other employees safe. "There is always a danger that someone might have it but is not getting tested because they don't want to know," Shapiro said. "They need the paycheck."

But if employers suspect an employee is hiding the condition, they have the right to take someone's temperature. "It's now considered widely acceptable."

There are privacy concerns, too, with temperature checks. . How is the temperature taken? Can other people observe it or get access to the documentation?

 "Taking temperatures constitutes a medical exam. Privacy rules apply. In this pandemic, the EEOC has approved of temperature taking. However, temperature taking processes must be administered fairly, and safely. Not doing so could lead to claims of discrimination among other things. Are the temperature takers qualified?" said Wendy Lazerson, a partner at Sidley Austin law firm in Palo Alto, Calif. "Is the exam being administered fairly? Is privacy respected in the manner in which the process is implemented to the extent possible? We think about the balance of the safe workplace, privacy and the risks of litigation, and we walk fine lines in a situation where there are no clear answers."

Added Shapiro, "This unprecedented situation is going to lead to employee claims we cannot even imagine."

The frightening pace at which the virus has spread has forced workplaces to make equally rapid policy changes. Stephanie Weinstein, an employment lawyer with Marcus & Shapira, a law firm in Pittsburgh, recently intervened when an employee from a company she represents had contact with a sick employee from an outside firm during work hours. Weinstein called the legal department from the other company to ask whether their employee had been diagnosed with COVID-19, but they refused to confirm or deny it. "We sent our employee home and paid the employee for two weeks. We still don't know if their employee was diagnosed. Everyone is in a difficult situation. All of my clients are trying to do the right thing by keeping everyone safe."

Cristina Rouvalis is a freelance writer based in Pittsburgh.