As more and more states have declared a state of emergency in view of the COVID-19 outbreak, employers across the United States have begun to make various inquiries regarding the rights of employees who test positive for the COVID-19 virus. Because a positive COVID-19 test is considered to be confidential medical information, employers cannot share information regarding the results of such a test. Accordingly, employers must walk a fine line in order to comply with both the Americans with Disabilities Act (“ADA”) and the Occupational Safety and Health Administration’s (“OSHA”) general duty clause. Together they prohibit an employer from sharing information regarding the test results of an employee who tests positive for the COVID-19 virus while also ensuring that the employee does not pose a risk to the health and safety of others.
What information is needed when an employee tests positive?
The employer must take immediate steps to identify the scope of risk in the workplace by requesting certain information from the employee who tested positive for COVID-19 (the Affected Employee). Ask the Affected Employee to provide a list of employees or other work-related third parties with whom the Affected Employee came into “close contact” during the 14-day period prior to the positive test (the Incubation Period).
The CDC generally defines “close contact” as being within approximately six (6) feet of someone for at least fifteen (15) minutes, or having direct contact with infectious secretions from someone with a COVID-19 case (e.g., being coughed on). The employer should also request that the Affected Employee identify all areas within the workplace where he or she was physically present during the incubation period, which is generally estimated as approximately fourteen (14) days.
What to Communicate to the Team
Federal law (Americans with Disabilities Act) requires employers to keep a worker’s medical condition private and not to disclose the identity of a person with a disability. The law, however, provides an exception that allows an employer to disclose limited information about a person with a disability to individuals who need that information to perform their job.
In this case, the employer should contact all the affected employees without revealing the identity of the affected employee.The employer may reveal when the affected employee was last in the workplace so that the co-workers may have a sense of how long to watch for symptoms.
Depending on the size of the employer and the logistics involved, the employer should consider issuing a general notice to its workforce that an employee has tested positive for COVID-19. The notice should reassure employees that, unless they have been specifically notified, that they have not come into close contact with the Affected Employee or shared a workspace
What to Disclose to 3rd Parties
When a business has an employee with a CVID-19 diagnosis, the business can choose to notify certain 3rd parties. Depending on the nature of the business, these notifications may include: customers, clients, vendors, employees, or any combination of the above. While not required by law, providing notice can help safeguard others and demonstrate your level of transparency.
The exception to this is if the Affected Employee is from a staffing agency or a contractor. The ADA does not allow the employer to share the name or medical information to 3rd parties.