This article was co-authored by Vanessa L Smith. Please contact Vanessa if you need employment law assistance related to this or another piece of COVID-19 regulatory interaction with the real world.
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The COVID-19 Employer Environment
With laws varied and some employers still open for business, employers are left wondering what they should do if an employee tests positive for COVID-19. Employers with an infectious disease, pandemic, or other emergency preparedness and response plan should refer to those plans on how to handle the potential spread.
Prompt identification and isolation of potentially infectious employees is a critical step. Employers should inform and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect exposure. Employers should have a policy for reporting when they are sick. Ensure sick leave policies are flexible and consistent with public health guidance and that employees are aware of them.
Rules Still in Play During COVID-19 Pandemic
Employee benefits compliance rules are still in play, along with employment law.
- HIPAA rules for minimum necessary use of Protected Health Information (PHI), where using/disclosing PHI. Some laxity in these rules have been made during the crisis.
- Health Plan may disclose to public health officials without authorization (no requirement to report).
- See special topics for HIPAA & COVID-19.
However, HIPAA does not apply to an employer acting in its capacity as an employer. Rather, ADA and state privacy laws may come in play and employers should be aware of their obligations under these laws.
- For example, the ADA’s confidentiality provision prohibits the disclosure of the name of an individual who has tested positive for COVID-19.
- An employer may provide a written letter to employees to notify them of the incident and help them to evaluate the risk of infection. Such a clear, timely communication also will help dispel any rumors or concerns among workers and assure them their safety is a top consideration. A sample letter is attached.
- Application of ADA laws continues to apply. Here, the information about the positive test as well as any information related to diagnosis, severity of symptoms, treatment plans, etc., are all considered confidential medical information and must be maintained in a separate medical file. You may want to consult an employment attorney to consider if reasonable accommodations are required. It is unlikely. See the EEOC site for COVID-19.
- Consider crisis or pandemic-specific policy:
- Make clear which positions are eligible to work from home.
- Make clear how the employee should request an absence or to work from home and how the employee will inform supervisory if they are experiencing COVID-19 symptoms. It is advisable to always have such communications in writing.
- When an employee who has tested positive has gone through treatment, you will need to consider whether they may present a threat to workplace safety upon their return. Minimally, employers must make clear the return-to-work protocol, including what medical documentation will be required. At this time, the EEOC has recognized that traditional fitness-for-duty documentation may be unavailable during and in the aftermath of the pandemic, and that ‘new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.’ Regardless of which approach is taken, employers must apply the protocol consistently to avoid claims of discrimination.
While the COVID-19 environment leaves many new scenarios in front of us, during this time we must remember most rules are status quo. Confidential information related to one’s health is still to be treated with confidentiality. HIPAA still applies to health plans but has an exception for public health. Now is a time to refer to those preparedness policies. And if you don’t have them, there is nothing like real-life showing us what terms need to be developed. Such as what to do if an employee tests positive for an infectious condition or disease. That scenario may play out again… hopefully next time we all feel prepared.
- For complete details on how to protect your workplace, see the OSHA Guidance on Preparing Workplaces for COVID-19.
- The U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention (CDC) provides the latest information about COVID-19 and the global outbreak:
- The OSHA COVID-19 webpage offers information specifically for workers and employers: www.osha.gov/covid-19.
This is not intended or provided as legal or tax advice. Consult your legal professional to ensure compliance with all applicable data in this ever-changing environment.
Leavitt Group brings you educational information to assist clients in navigating the rules during the COVID-19 times. We are not an employment law firm, nor employment lawyers. Seek the advice of an employment law specialist to ensure compliance with all applicable laws for this scenario.