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Apr 2020
17
April 17, 2020

Confidentiality of Employee COVID-19 Information: An Update from the EEOC

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.

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.

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