FAQ – Employee Privacy Rights

03/26/20

Can I require employees to allow me to take their temperature?

Employers normally cannot check employees’ temperatures under the ADA. However, because CDC and state/local health authorities have acknowledged community spread of COVID-19, the EEOC has stated that employers may check their employees’ temperature. However, it should be kept in mind that some people with COVID-19 do not have a fever.

Employers should abide by the following testing guidelines:

  • Test in a non-discriminatory manner.
  • Use non-invasive/thermal imaging equipment.
  • Remember that any information recorded is a medical test subject to confidentiality requirements (e.g., it should not be documented in personnel files).

If an employee tests positive for the virus, to whom can I reveal this information? Are there any persons to whom I'm obligated to disclose this information?

As set forth above, employers should not disclose the identity of any employee diagnosed with, or suspected of having, the coronavirus (unless otherwise directed by government). Instead, employers should send a communication:

  • Reporting that there has been a confirmed case of a co-worker contracting the virus;
  • Urging employees to be careful in observing their own symptoms;
  • Directing employees to avoid the office and seek medical attention if symptoms occur; and
  • Employers should reach out separately to any smaller populations that may have been at a higher risk of close contact with the affected employee (e.g., shared cubicle block, officemate, recently in meetings together).

Employers should carefully consider whether and how to disclose suspected exposure based on numerous factors including:

  • Likelihood of infection based on other facts (e.g., employee has had exposure to someone who has been exposed, employee recently travelled to hot spot, absence of other indicators of likely exposure);
  • Potential extent of exposure within the workplace;
  • Timing of confirmation of test;
  • Impact on business of disclosing (e.g., potentially unnecessary anxiety) vs. impact of not disclosing (e.g., distrust by employees who may subsequently blame employer for subsequent spread).

OSHA requires employers to record certain work-related injuries and illnesses on their OSHA 300 log, and complete the OSHA form 301 (or equivalent). OSHA recordkeeping rules only apply to injuries or “illnesses." COVID-19 is a recordable illness if a worker is infected as a result of work-related duties.

Employers are only responsible for recording a COVID-19 case if:

  • There is a confirmed diagnosis of COVID-19;
  • The employee's contraction of the virus was “work-related” (Requires an individualized determination of whether an event or exposure in the work environment caused or contributed to the resulting condition, which will be challenging); and
  • The situation involves one or more of the general recording criteria (e.g. medical treatment beyond first aid, days away from work).

OSHA also requires employers to report to OSHA any work-related illness that results (1) in a fatality, or (2) in the “in-patient” hospitalization of one or more employees. While OHSA has excluded the cold and flu, it has determined that COVID-19 is a reportable illness (confirmed/diagnosed cases). If an employee has a confirmed, work-related case of COVID-19, the employer needs to report if it results in fatality or “in-patient” hospitalization. Deaths must be reported within 8 hours. In-patient hospitalization must be reported within 24 hours. However, the reporting obligation is time-limited. If fatality occurs more than 30 days after the workplace incident or hospitalization occurs more than 24 hours after the workplace incident, the employer has no obligation to report the incident.

This is a fluid and rapidly changing situation and these resources are current only as of the date of publication. We recommend that you contact your local Quarles & Brady attorney regarding the most up-to-date information or with any other questions regarding this subject matter, or contact Otto Immel: (239) 659-504 / [email protected].