If your business continues to operate during the COVID-19 pandemic, you may have implemented screening procedures to identify sick employees who should not be working. Health information that you collect from your employees in this context needs to be kept confidential, and to the extent that you keep records of these screenings, you must ensure that the information is kept separate from the employee’s personnel record.
Health information about employees is generally protected by a number of privacy laws, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and the Genetic Information Nondiscrimination Act (GINA). The Equal Employment Opportunity Commission (EEOC), which enforces workplace civil rights laws, including the ADA and GINA, recently issued some FAQs addressing COVID-19 confidentiality issues. Key points in this guidance are:
- While an employer must maintain COVID-19 medical information separately from the personnel file, there is no need to create a separate medical file just for COVID-19 information. An employer can keep COVID-19 health information about an employee in the same confidential medical file that it uses for other medical information, such as for ADA and FMLA purposes.
- An employer may keep a log or other records of employee health screenings, so long as it maintains the confidentiality of that information in its separate medical files.
- If an employer learns that an employee is infected with COVID-19, the employer may disclose the name of the employee to a public health agency.
- A staffing agency or contractor that places a worker at an employer’s worksite, upon learning that the worker has COVID-19, may notify the employer and disclose the name of the worker, so that the employer can determine if others in the workplace have been exposed.
We’re here to help! If you need assistance with privacy issues, please contact Norbert Kugele, Kelly Hollingsworth, Alexandra Chitwood, Lexi Woods or any other member of Warner’s Cybersecurity and Privacy Practice Group.
