The Equal Employment Opportunity Commission has issued new guidance for workplaces, dated April 17, 2020, as they start the process of preparing for the impending re-opening of their entities in the face of the Covid-19 pandemic. The following provides clarity on the issue of the confidentiality of medical information during the Covid-19 crisis. Importantly, it is critical that one stay abreast of any new developments through vigilant scrutiny of new governmental releases or inquiries with counsel concerning this subject matter, particularly given the rapid pace at which the governing law in this area is changing as the Covid-19 crisis evolves.
Question 1: May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information?
Answer: The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
Question 2: If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?
Answer: Yes. The employer needs to maintain the confidentiality of this information.
Question 3: May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?
Answer: Yes.
Question 4: May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19?
Answer: Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.
Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].