COVID-19 Inquiries and Disclosures in the Workplace

Excerpted from Lexology by Akerman, LLP

Once an employee has been exposed to a suspected or confirmed case of COVID-19, what do you do? Once an employee has tested positive, what do you say? How does an employer walk the fine line between protecting the privacy of affected individuals and ensuring the safety of others in the workplace?

Because a national public health emergency has been declared and all 50 states and the District of Columbia have issued similar declarations, employers may go much further in their medical inquiries and exams.

Employers should ask employees to notify Human Resources if the employee has been exposed to a suspected or confirmed case of COVID-19, so that the employer can take precautions. The same is true if the employee has tested positive for coronavirus. All self-reports by employees should be kept confidential and should be noted in separate employee medical files that the employer maintains, not in the employee’s personnel file.

The message to employees should be couched in terms making clear that asking employees to self-report is part of the employer’s effort to keep co-workers safe and stop the spread of the virus. Emphasize that finding out about exposure or potential exposure quickly is key, and given the delay with obtaining tests and test results, self-reporting is paramount.

For example:

“We understand that it can take the health department several days to notify the employer if an employee is positive. To protect each other, we ask that you notify the HR Department if you have tested positive. (This information will remain confidential, etc.). ”

With respect to whether a sick worker’s colleagues be notified that they have been exposed to someone experiencing the symptoms of COVID-19, there is a tension between the employer’s duty to provide a safe workplace under the “general duty” clause of the Occupational Safety and Health Act (OSHA) and the duty to protect the privacy of the ill employee. Employers are going to have to balance those concerns by relying on recommendations from the Centers for Disease Control and Prevention (CDC), the World Health Organization (WHO), state and local health authorities, and common sense.

If an employee goes home sick with COVID-19 symptoms, many employers are choosing to close the workspace and send home those who worked in proximity to the ill worker for 14 days or until the ill employee has tested negative. That is the safest bet, particularly if there are other employees who have underlying vulnerabilities that make them particularly susceptible – e.g., heart disease, lung disease, suppressed immune system, or other chronic medical conditions.
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