Can I Tell My Staff About an Employee’s Health Condition?

In the era of COVID-19, the issue of what employers can reveal about employees' health is a more significant issue than ever before.

Where does an ill employee’s right to privacy end and co-workers’ need to be knowledgeable and protected begin?

The Americans with Disabilities Act (ADA) privacy rules restrict employers from sharing personal health information of an employee. In the case of a positive diagnosis of COVID-19, employers should inform employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

The Equal Employment Opportunity Commission (EEOC), the federal agency that provides guidance on interpretation of the ADA, offers written guidance for a wide range of scenarios. For instance, the guidance differentiates between a mere notice that an employee has taken sick leave or had a doctor's appointment, which may not be considered covered medical information, and revealing the employee's diagnosis or symptoms. In an abundance of caution and to respect the right of privacy, employers are well advised not to discuss any aspect of employee’s medical information at all – even the mention of a doctor’s appointment.

Can an employer ask an employee if they have coronavirus?

No. Employers can ask an employee how he or she is feeling in general but should not inquire about a specific illness because that could rise to the level of a disability-related inquiry under the ADA. Similarly, if an employee reveals that they need time off for a doctor’s appointment, it is best that the employer refrain from asking questions about the type of appointment or reason for the doctor’s appointment.

Would disclosure of this information to staff violate the employee’s privacy rights under the Health Insurance Portability and Accountability Act regulations?

Potentially. HIPAA applies to the covered entities: health care providers, health plans, and other health organizations with an expectation of privacy. However, if an employer is a sponsor of a group health plan, the HIPAA obligations may apply. The overall theme of the EEOC's guidance is that medical information should be shared with others only on a "need to know basis" and only to the extent that the information shared is vital to them. Of course, the employee with the medical condition may choose to share his/her personal health information. Once disclosed openly, it's no longer protected information; however, the employer should still refrain from discussing the information with others.

What about disclosing disabilities that could impact the workplace?

According to the EEOC, the individualized assessment of virtually all people with conditions that may result in a disability determination under the ADA must be kept confidential, subject to certain narrow exceptions. Under the ADA, the owner may disclose such information only to:
 

• Supervisors and Managers if it relates to “necessary restrictions on the work or duties of the employee and necessary accommodation;”
• First Aid and Safety Personnel “when appropriate, if the disability might require emergency treatment;” - Government Officials investigating compliance with the ADA, upon request;
• State workers’ compensation offices, state second injury funds or workers’ compensation insurance carriers in accordance with state workers’ compensation laws, if there is an injury on the job; and 
• Agents for insurance purposes.

What about the employee's co-workers? Wouldn't they have a legitimate need to know if they will need to accommodate a co-worker with a disability?

We would strongly recommend getting the employee's written permission as to what can be shared, if anything. If the employee does not want the medical condition shared with others, the supervisor must honor that request. If the employee does not want anything shared, what could the supervisor say to co-workers who feel that the employee is receiving different or special treatment? In response, the supervisor should state that she is unable to discuss any employee’s personal information or medical information with any other person, and that she would respect the privacy of the person asking the question if another employee inquired about their personal information or medical information.

The bottom line is that employers who obtain medical information should think and assess carefully before necessarily sharing information with others. Based on the circumstances, improper sharing of information could violate the ADA, The Family and Medical Leave Act (FMLA), Fair Credit Reporting Act (FCRA), HIPAA, or state law. For that reason, we highly encourage you to work closely with a Human Resources Professional or Employment Law Attorney if you are concerned about how medical information is being shared in your organization.

If you have questions about COVID-19 and employment law, check out our employer resources.