On March 27, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted a webinar in which EEOC staff answered employer questions about how to respond to the COVID-19 pandemic and still be compliant with federal employment nondiscrimination laws—including questions on handling confidentiality of COVID-19 medical information under ADA.
The webinar supplements the COVID-19 publications already available on the EEOC website: “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” and “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” EEOC staff did not repeat what is in these publications.
EEOC received over 500 questions from employers and selected the most common questions for the webinar. EEOC staff are studying the rest of the questions, and the agency could possibly issue additional guidance.
Here are takeaways from the six most common questions on confidentiality of COVID-19 medical information under the Americans with Disabilities Act (ADA).
Note: This information is COVID-19-specific and reflects the situation as of March 27, 2020.
1. A manager confirms that an employee has tested positive for COVID-19 or has symptoms associated with COVID-19. What should the manager do?
The manager should report to the appropriate employer official. Exactly which employer officials need to know the identity of the individual depends on the workplace. Employers should make every effort to limit the number of people who are informed regarding the employee’s identity. Instruct those people that they must maintain confidentiality of the employee’s identity.
Employers should plan for this scenario and then inform all managers who is the designated employer official responsible for receiving information from managers and conducting the next steps.
The next step is for the employer official or designated representative to interview the employee to obtain the names of possible contacts in the workplace. Then the employer can notify those individuals who may have come into contact with that person, but the employer cannot reveal the infected employee’s identity.
2. In the case of employees who physically report to the workplace, if an employee knows that a coworker has symptoms of COVID-19, can the employee disclose the coworker’s symptoms to a supervisor?
Yes, this is permitted under ADA.
[Related Reading: DOL Issues Additional Guidance on FFCRA]
3. An employer knows that an employee is teleworking because the employee has COVID-19 or symptoms associated with COVID-19, and the employee is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying the reason why?
Yes, because staff need to know that this employee is available and how to contact the employee. The employer should not disclose a reason, however.
4. Telling employees that “someone at this location” or “someone on the 4th floor” has COVID-19 may not provide sufficient information to allow employees to know if they should take further steps to protect themselves and others. Can an employer tell the workforce the name of the employee?
No, this is not allowed under ADA. Even in a small office setting where people may be able to figure out who the person with confirmed COVID-19 is, the employer must not disclose the employee’s name. Also, CDC guidelines specifically say that employers must maintain confidentiality of people with confirmed COVID-19 infection.
5. How are managers who are telecommuting supposed to keep medical information of employees confidential while working remotely?
Confidentiality of medical information under ADA requires that medical information be stored separately from regular personnel files. If a manager receives information involving COVID-19 or any other medical information while teleworking and is able to follow an employer’s existing confidentiality protocols while working remotely, the manager must do so. However, if the normal procedure is not feasible, the manager must still safeguard this information to the greatest extent possible until he or she can properly store it. For example, the paper or laptop that records the information may not be left out where others can see it. Consider using initials or some type of code to ensure confidentiality of the employee’s name.
[Related Reading: More COVID-19 Relief via the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)]
6. Does the ADA permit employers to notify public health authorities if they learn an employee has COVID-19?
Yes, employers can notify public health authorities if they learn an employee has COVID-19 because COVID-19 is a direct threat to public health.
COVID-19 Pandemic and Antidiscrimination Laws
To learn more, view the full recording of the U.S. Equal Employment Opportunity Commission (EEOC) webinar advising employers how to stay compliant with federal employment nondiscrimination laws while responding to the coronavirus pandemic.
Coronavirus and the Workplace
Learn more:
- Visit the International Foundation Coronavirus (COVID-19) Resources page
- Catch up on the latest COVID-19 and the workplace issues from Word on Benefits
- Tune into in-depth on-demand webcasts
Jenny Lucey, CEBS
Manager, Reference/Research Services at the International Foundation
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