Scenario: An employee who must report to the workplace knows that a co-worker who reports to the same workplace has symptoms associated with COVID-19. Does Americans with Disabilities Act (“ADA”) confidentiality prevent the first employee from disclosing the co-worker’s symptoms to a supervisor?
The answer is no: ADA confidentiality does not prevent this employee from communicating to his supervisor about a co-worker’s symptoms. In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a co-worker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.
Scenario: An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why?
The answer: Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure of this information without saying why the employee is teleworking is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then of course too an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.
Scenario: Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely?
Question: Does the ADA permit employers to notify public health authorities if the employer learns an employee has COVID-19?
The answer is yes. The ADA permits this notification to public health authorities because, as the EEOC explained in its updated Pandemic publication, COVID-19 at this time poses a direct threat both to individuals with the disease and those with they come into contact. By direct threat, the ADA means that an individual’s medical condition — in this case, COVID-19 — poses a significant risk of substantial harm to himself or others.
Should you have any questions regarding this Alert, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].