Balancing Employee Rights with Employee Privacy During COVID

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Have you considered how to balance employee rights with employee privacy during COVID-19? These unprecedented times have raised many interesting and complex concerns. During the COVID-19 pandemic, employees returning to work may have privacy concerns about providing extensive health information to employers. Likewise, employers may worry about balancing employees’ privacy rights against health and safety risks caused by the contagious virus.

To achieve a workable balance, the U.S. Equal Employment Opportunity Commission published guidance for employers to both (1) comply with federal and state privacy laws and (2) rely on CDC and state and local public health guidelines to mitigate COVID risk. Employers also can use tools, such as those discussed below, to manage these potentially (though not always) competing interests.

For example, instead of a release, which is likely unenforceable, employees may sign a tailored acknowledgement form. The form would state the company is taking steps to protect staff; has implemented health and safety procedures; and that the employee will comply with the company’s guidelines.

Employers covered by the Americans with Disabilities Act of 1990 (ADA) can and should ask about virus symptoms. Employers should also rely on CDC and medical guidance. Employers may measure an employee’s body temperature if the results are kept confidential, as discussed below. Lastly, employees may be asked to stay home if showing signs of the illness. Employers may also ask for verification that the employee is fit to return.

Employers should store employees’ medical information separately from the personnel file. The information could include responses to the questions discussed above and ADA-permitted medical examinations. Employers should keep confidential the identities of employees who have tested positive for COVID (except for contact tracing and exposure reasons, as mentioned below), but may disclose the identity to a public health agency. 

Despite the confidentiality obligation, employers should notify employees who may have been exposed to COVID by a coworker. Except if consent was given by the employee, notification should not include his or her name, but the notification should have enough information, such as work periods or office/floor location, so co-workers can assess their risk of exposure. 

For more guidance on employment law issues that have developed in the COVID-19 era, our experienced team of local attorneys is here to answer your questions. You may call, chat, or contact us at any time. Put our team to work for you!