EMPLOYEE MEDICAL TESTING AND INFORMATION DURING THE COVID-19 PANDEMIC
Under normal circumstances, federal statutes such as the Americans with Disabilities Act (ADA) and, in some instances, the Health Insurance Portability and Accountability Act (HIPAA), substantially restrict an employer’s right to conduct medical tests and examinations, and to access and share employee medical information. The current COVID-19 outbreak has created a greater impetus for testing and sharing of information. As a result, exceptions to these general principles have started to emerge, providing greater latitude for employers.
For example, the Equal Employment Opportunity Commission (EEOC) has recently confirmed that employers may take employees’ temperature (technically a medical examination) or require employees exposed to the virus or experiencing symptoms to undergo testing without running afoul of the ADA’s limitations on medical examinations. Employers are also permitted to act upon reasonable suspicion and direct employees to remain at home, and to require a fitness for duty certification before readmitting employees to the workplace.
The ADA’s confidentiality requirements may also be impacted by the pandemic. While the general rule that employee medical information be maintained in separate files with limited access remains, the categories of “need to know” disclosures can certainly be expanded in the context of a contagious virus. For example, employers are permitted and, indeed, should notify public health agencies if the virus is detected.
The right of certain employees to obtain medical information regarding potential exposure to the virus is another area where the law has expanded. Under the Ryan White HIV/AIDS Treatment Extension Act (“Ryan White Act”), Emergency response employees (e.g. firefighters, law enforcement officers, paramedics, emergency medical technicians) can request information regarding exposure to potentially life-threatening infectious diseases through contact with victims during emergencies. COVID-19 was recently added to the list of infectious diseases covered by this law.
As we proceed through this crisis, additional issues may arise as existing laws intersect with a myriad of new factual scenarios. Our firm remains available to address these issues for both employers and employees.
Stay safe and don’t hesitate to call us.