Getting Back to Business - COVID-19 and the Right to Privacy vs. Right to Know

It seems that every day there is a new report of a major COVID-19 outbreak in workplaces that remain open for business. At some point, perhaps soon, other businesses will begin returning furloughed and teleworking employees to their workplaces from their conoravirus-imposed exiles. Economic pressures will prompt these return to work measures before the risk of the spread of COVID-19 can be comfortably mitigated, whether through vaccination, herd immunity or effective treatment. It is inevitable; COVID-19 infections will continue.


In addition to the well-publicized measures that employers should employ to provide as safe a workplace as possible (sanitizing common areas, requiring the use of masks, implementing social distancing guidelines, etc.), public health officials also stress the need for employers to take prompt action in response to a diagnosed or suspected case of COVID-19 in an employee.


When a worker is diagnosed with COVID-19, or is experiencing symptoms of the illness, employers must take prompt additional measures to protect coworkers and members of the public from a spread of the infection, such as removing the infected employee from the workplace until they are symptom-free, sanitizing that employee’s work area, and informing the infected employee’s coworkers of their possible exposure to coronavirus.


As to the latter measure, the question always arises as to how much information about the infected employee should the employer disclose to coworkers? How much information is too much information such that it crosses the line into the impermissible disclosure of confidential medical information in violation of the infected employee’s right to privacy? And if it does cross the line, how much does it really matter when weighed against what could be a broader risk created by suppressing it?


Ordinarily, employers have a legal duty to protect to the maximum extent possible an employee’s confidential medical information. The ADA and FMLA each prohibit the disclosure of certain medical records. Certain states such as California also have privacy statutes that come into play.


The consensus among legal experts is that when informing coworkers that a fellow worker has been diagnosed with or may have contracted COVID-19, an employer may not reveal the identity of or other personally identifiable information about the quarantined employee. Period.


However, these are not ordinary times and coronavirus is not an ordinary contagion. For example, there is nothing to prohibit an employer from asking an employee going into quarantine for permission to disclose the quarantined employee’s identity to coworkers. Many if not most individuals will want others to know that they may have been infected. If that is the case, defaulting to the general rule of confidentiality is a mistake. The only way to find out is to ask.


The more difficult question is whether, even without consent, an employer should disclose the identity of an employee going into quarantine. Why would any employer do that? Well, depending on circumstances, telling a particular employee that they may have been exposed to coronavirus because an unidentified coworker has gone into quarantine may be far less useful information to that employee than knowing who the coworker is.


For example, if Dwight goes into quarantine because he has been diagnosed with COVID-19, would it not be better for Jim, who sits at a desk directly across from Dwight, to know that it was Dwight who was diagnosed, as opposed to Darryl or some other employee with whom Jim has far less frequent and more distant contact? Given the risk and the potential deadliness of the coronavirus, when does full disclosure to protect the health of many trump one individual’s right to privacy?


These are questions that must be dealt with discretion on a case-by-case basis, preferably under the guidance of experienced counsel.

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