Health & Privacy Concerns as You Return to the Workplace

The world is slowly but surely returning to life, and people around the globe are beginning to wonder what the “new normal” is going to look like.  Media and other resources are feeding us plenty of information on what to expect when government restrictions are loosened enough for the majority of us to go back to work.  The immediate future that awaits us when we return to work is likely going to feel very strange – medical examinations, enforcement of personal hygiene, enforced social distancing, and other surprises.  

As you can imagine, this will create many interesting legal questions. This article focuses on the legal implications of medical examinations at the workplace.  Pandemic or no pandemic, employers must remember that there are limits to employees’ health information they may obtain and avoid risks associated with potential disclosure of personal medical information.

How can your business ensure that your employees are safe, healthy, and productive – without violating the law? Let’s dive in. 

The American with Disabilities Act (“ADA”) narrowly limits the circumstances under which employers can require medical examinations of employees.  While the ADA doesn’t define what exactly constitutes a medical exam, the Equal Employment Opportunity Commission (“EEOC”), the agency tasked with enforcing the ADA, defines “medical examination” as a “procedure or test that seeks information about an individual’s physical or mental impairments or health.” Further, the EEOC has taken the position that taking a temperature or other form of “temperature test” is a medical examination under the ADA, which may only be performed if doing so is “job-related and consistent with business necessity.” What constitutes “business necessity” is different during a pandemic.  So, as COVID-19 has been declared an international pandemic by the World Health Organization, the Centers for Disease Control and Prevention (“CDC”) has stated that temperature screenings during this time are valid, appropriate, and permissible.

In addition to measuring employees’ temperature, an employer may ask an employee questions about symptoms of the pandemic virus if the employee exhibits sick symptoms at work or call in sick.  For COVID-19, these symptoms include fever, chills, cough, shortness of breath, sore throat, loss of smell or taste, and gastrointestinal problems, such as nausea, diarrhea, and vomiting.  As public health authorities and doctors learn more about COVID-19, they may expand this list.  Employers should rely on the CDC and other public health authorities for guidance on ever-emerging symptoms associated with the disease.

In certain situations, it is also permitted to ask employees to complete a simple questionnaire that lists each of the symptoms.  Currently, identification and isolation of sick employees are allowed under the ADA; however, employers must consider applicable privacy laws related to employees’ medical information.  In general, HIPAA and other privacy laws prohibit the disclosure of health information.  While there are exceptions, such as public safety concerns, employers should not be making such disclosures.  Even in emergencies, HIPAA and other privacy laws still apply.  All temperature readings, information on symptoms, and any supporting records or logs must be treated as confidential medical information.  

The ADA requires that all confidential medical information be stored separately from the employee’s personnel file, thus reducing the risk of disclosure of such confidential information.  Another confidentiality consideration is incidental disclosure of private facts or medical information.  If, for instance, a line is formed from employees waiting to be screened for fever, and one employee was denied access to work, other employees in the line may witness it and presume that individual had COVID-19.  This could be seen as public disclosure of private facts or medical information and should be avoided.  Additionally, an employer can be found in breach of the ADA if temperature screening exams results in the disclosure of other personal medical information, or the information is disclosed to anyone without a legitimate, job-related reason to know it.

In addition, it is prudent to have a written policy detailing the practices your business is taking to prevent COVID-19 spread in the workplace. Companies should communicate these policies clearly and apply these practices uniformly.  It is imperative to consider the legal implications of taking precautionary measures in the office and balance them with the benefits they create.  At CLARK.LAW, we are happy to draft your company’s written policy and provide you with legal advice on current practices.  Stay safe and healthy or, as we say in Russian, “Na zdorovie!”

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Yelizaveta Leah

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