What happens when an employee reports COVID-19 symptoms or close contact with another person who has tested positive for COVID-19? Upon receipt of such information, employers must be mindful of their dual obligations: (1) to protect the confidentiality of the employee’s sensitive medical information, and (2) to take reasonable measures to protect all employees’ safety and care, including making careful disclosures. While these obligations may exist in some tension, employers can properly navigate both duties. Here’s how.
Disclosure by employee to supervisor
If an employee self-discloses to an employer (through a supervisor or HR manager) that the employee has tested positive for COVID-19, is otherwise exhibiting COVID-19-related symptoms, or has been exposed to another person with COVID-19 and therefore will be quarantining, the employer should not disclose the information to others unless:
A. The employee gives express written permission for the employer to disclose such information to others (notification through email or employer internal messaging programs should be sufficient);
B. The employer needs to carry out obligatory contact tracing measures, such as to alert other employees who have been in close contact with the employee recently; or
C. The employee shares such information freely with others (e.g., publicly posting on Facebook), thus making the information publicly available.
Even if disclosure is permissible, employers should limit their disclosures to others on a need-to-know basis. The employer should be very circumspect and careful about any further disclosures to others, as a matter of discretion and respect for the employee’s privacy.
Private disclosure in other contexts
If an employee posts such information on a private prayer page through social media, or otherwise through a private group, a supervisor’s or manager’s access to the private page does not give the employer any rights to republish. Employers should not share such information any further, but instead keep it confidential within such disclosure context.
Notification generally to other employees
Sometimes general disclosures to other employees are warranted for the safety of all. When disclosure is warranted, and in keeping with the above guidelines, the employer should very generally inform other employees of a COVID-19 infection situation without identifying the COVID-19 positive employee. Subject to applicable disclosure obligations for contact tracing (per above), it should be sufficient to provide general notification information such as the following: “We have received a report of an employee with COVID-19 symptoms [or exposure]. Accordingly, the office will be deep cleaned tomorrow, and all personnel are to stay home until the cleaning is completed.”
Clean, then clean more
Along with notification, the employer should carry out appropriate cleaning measures. More generally, and as described in our June 22, 2020 COVID-19 Workplace article, employers should continue to provide a clean and healthy in-person work environment for all employees, consistent with applicable government requirements and public health standards, and continually attentive to specific cleaning and disinfecting protocols as may be warranted and as may be updated periodically.
Employee responsibility for self-reporting and other safety measures
Employers should also regularly communicate and post organizational expectations for employees to self-assess symptoms of COVID-19 or other communicable diseases before reporting to work each day, such as through self-administered temperature checks. Employees suspected or confirmed to have COVID-19 (or who has had close contact with a co-worker or another person diagnosed with COVID-19), should be instructed to stay home, consult a healthcare professional, and refrain from reporting to the workplace until authorized by his or her healthcare provider or has otherwise taken appropriate safety measures such as quarantine and/or COVID-19 testing, in conjunction with regular communication with and notification to the employer,
Employees should also be instructed to follow health and safety protocols such as the following (a) avoid using other employees’ phones, desks, offices, or other work tools and equipment, when possible; (b) clean and disinfect any common or shared office equipment before and after use; (c) avoid large gatherings; (d) adhere to social distancing measures, including six feet of separation; (e) use a cloth face covering where appropriate social distancing cannot be maintained, especially in high-traffic areas.