New Jersey Workplace Privacy and Confidentiality Issues for COVID-19

As the COVID-19 outbreak continues, employers and employees alike want to know their respective privacy rights and obligations regarding this dangerous virus.  Under typical circumstances, the Americans With Disabilities Act (as well as many state anti-discrimination laws) prohibits an employer from asking a worker about her medical condition, unless that condition is the subject of the worker’s (1) request for medical leave; or (2) request for a reasonable accommodation of her condition.  Moreover, the Americans With Disabilities Act contains confidentiality protections for all disability-related medical information an employer obtains through employment-related examinations or inquiries.

However, the current pandemic has necessitated limited exceptions to these rules.  Recently, the EEOC offered the following guidance to employers regarding the COVID-19 status of their employees.  Here is a quick summation of those points of particular interest to workers:

I am still reporting to the workplace. Does my employer have the right to ask whether I have COVID-19?

If you are physically entering the workplace, then your employer is entitled to ask you:

• About any symptoms of COVID-19 you may be suffering from or displaying, including cough or fever;
• About whether you have contracted COVID-19;
• About whether you have been tested for COVID-19.

Likewise, if you are still reporting to the workplace but need to call in sick, your employer is entitled to ask you the foregoing. 

Indeed, due to the need to control the spread of the virus, the EEOC has stated that if you exhibit or relay that you are suffering from symptoms of COVID-19, then your employer may send you home from the workplace.  Additionally, your employer may require a note from your physician certifying your fitness to return to work before allowing you to report to the workplace again.

I am still reporting to the workplace.  Does my employer have the right to take my temperature?

As current EEOC guidelines state: “Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.”

Again, if your temperature is elevated, your employer may send you home from the workplace and require a doctor’s note certifying your fitness to return to work before allowing you back in the workplace.

• I’ve tested positive for COVID-19 and disclosed this to my employer.  What are my privacy rights regarding my condition?

OR

• I heard another employee tested positive for COVID-19 and was sent home.  Aren’t I entitled to know who it was?

An employer might receive notification that a worker is positive for COVID-19 either directly from the employee, or via local county health authorities.  Currently, the EEOC advises that such employers should limit the disclosure of the identities of COVID-positive workers to those who came in direct contact with the worker and pose a realistic threat of contagion.  Even then, to the extent possible, the EEOC advises against releasing the name of the COVID-positive worker. 

As such, many employees may receive notice from their employers that an unidentified worker has tested positive for COVID-19.  While the lack of specifics are understandably frustrating, the important thing is that your employer alerts you as to whether you came into direct contact with such a worker so that you can take appropriate protective measures.

Likewise, if you are the unfortunate employee with COVID-19, please realize that your name and identity may be discovered despite your employer’s efforts, via office gossip and the process of elimination – especially if you work for a small company.

In this unprecedented time, public health concerns will sometimes override or relax privacy protections.  Our offices wish you health and safety in the coming weeks. And, as always, if you are facing an employment-related legal issue, call us today for a free consultation.