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  • Michelle Swann

Tough call: Conflicts between employee privacy and a coronavirus-free workplace: What laws allow in

A common dilemma for employers in our coronavirus world is how to reconcile (a) maintaining a safe workplace and (b) respecting the privacy of potentially infected workers.

We hope that the following overview may assist you in the coming weeks when addressing employees who have, or are suspected to have, a COVID-19 diagnosis and what you may, or must, report to other employees and the Arizona Department of Health Services.

On March 27, an EEOC webinar provided a federal perspective on COVID-19 for employers, and the Arizona Attorney General issued an opinion on permissible COVID-19 disclosures by government entities. Both focus on an employer's obligation to maintain confidentiality as required by the Americans with Disabilities Act (ADA) and other employment laws.

What Is Permitted. In addressing a common question, the EEOC takes the position that employers are permitted to take the temperature of employees who are physically present in the workplace or on a jobsite. Even with the ADA's strict privacy guidelines, an employer will not run afoul of that law by performing permissible temperature checks and questioning.

Employers may also ask physically present employees if they have:

  • a COVID-19 diagnosis,

  • symptoms associated with COVID-19 (currently identified as a dry cough, sore throat, fever, shills, and shortness of breath), or

  • been tested for COVID-19.

Employers may physically exclude from the workplace any employee with a COVID-19 diagnosis or associated symptoms, on the basis that the employee's presence would pose a direct threat to the health or safety of other employees. If an employee refuses to provide answers to an employer or undergo a temperature check, the ADA allows the employer to exclude the employee from the workplace.

Also, the ADA does not prevent employees from reporting to the employer suspected cases of co-worker illness, and reporting employees should not be retaliated against for such reporting.

  • Warning: Arizona will likely consider it a worker's compensation eligible injury if an employee contracts COVID-19 at work!

Off Limits. Employers should not single out any particular employee for a temperature check or questioning unless the employer can substantiate a "reasonable belief," based on objective evidence, that the employee may have COVID-19.

Also, employers may not ask these questions of employees who are teleworking, because those employees are not physically interacting with co-workers.

The ADA does not permit broad disclosure of the medical condition of employees, and the Centers for Disease Control and Prevention (CDC) specifically advises employers to maintain the confidentiality of individuals with confirmed COVID-19. An employer may not - without an employee's consent - disclose broadly that an employee has a COVID-19 diagnosis or symptoms; rather, the employer could simply tell staff that an employee will be "working from home" or is absent for that day.

Managing the Process. The employer should limit the number of people who learn the identity of an employee who has a COVID-19 diagnosis or associated symptoms. To achieve that objective:

  • The employer could designate one supervisor who will perform the tests and report only - by name - an individual who that supervisor determines should be excluded.

  • The supervisor must be instructed on how to maintain the confidentiality of the employee's name and physical symptoms.

The confidentiality of medical information includes storing medical information separately from regular personnel files. If a supervisor receives information involving COVID-19 or any other medical health information, the information must be maintained in a separate file. If normal recordkeeping protocols are not feasible because of teleworking, the supervisor must still safeguard that information to the greatest extent possible until the supervisor can properly store it.

Arizona. Under Arizona law, there is a general duty to report any "contagious, epidemic or infectious disease" to "the appropriate board of health or health department." Under Arizona regulations, health care providers and clinical laboratories are required to report cases of COVID-19.

However, most other private employers do not have a similar duty at this time.

Questions? All of us are trying to navigate previously uncharted waters, and you should not assume that general knowledge of the law and normally sound employee management practices will be applicable under today's conditions.

If you have specific or general questions about employee management in the COVID-19 environment, please seek professional guidance.

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