FAQ – Employee Privacy Rights

Updated on 01/06/21

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).

Some states and local governments may have enacted COVID-19 reporting requirements for certain employers. Employers should consult the applicable state and local rules and guidance to ensure compliance.

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).

Given the manner in which a virus like COVID-19 is contracted, it can be difficult for employers to determine whether a COVID-19 illness is work-related, especially when an employee had possible exposure both in and out of the workplace. In light of the difficulty in assessing work-relatedness of COVID-19, OSHA is exercising enforcement discretion to assess employer’s efforts in determining work-relatedness. OSHA examines the following considerations when determining whether an employer conducted a sufficient investigation into the work-relatedness of a COVID-19 illness.

The reasonableness of the employer’s investigation into work-relatedness: OSHA does not expect employers to undertake extensive medical inquiries when investigating whether a COVID-19 illness is work-related. Instead, OSHA recommends the following steps in conducting a sufficient investigation:

  • Ask the employee how he or she believes they contracted the COVID-19 illness;
  • While respecting employee privacy, discuss with the employee his or her work and out-of-work activities that may have led to the COVID-19 illness; and
  • Review the employee’s work environment for potential exposure. This should take into account whether other workers in the same environment contracted COVID-19.

The evidence available to the employer: The employer should review all reasonably available evidence at the time the work-relatedness determination is made. OSHA has not elaborated on what “reasonably available” means, but it appears that any evidence that can only be obtained by extensive inquiry need not be examined. OSHA will take into consideration whether an employer comes across additional information at a later point in time in determining the sufficiency of the work-relatedness investigation.

The evidence that a COVID-19 illness was contracted at work: There is no precise formula used by OSHA to determine whether an employer complied with its recording obligation, but certain evidence may weigh for or against work-relatedness. Examples include:

  • Several other cases develop among workers who work closely together;
  • The employee’s COVID-19 illness is contracted after having lengthy contact with a co-worker or customer who tested positive for COVID-19;
  • The employee has frequent exposure to the general public in a community with a higher than average transmission rate;
  • The employee frequently associates with an individual outside of the workplace who has Covid-19, who is not a coworker, and exposes the employee while they are infectious.

If after conducting the above good-faith inquiry the employer cannot determine whether it is more likely than not that the employee’s exposure in the workplace caused the COVID-19 illness, the employer does not need to record the COVID-19 illness on their OSHA 300 log.

Employers also must report certain confirmed workplace COVID-19 cases. The reporting obligation applies to 1) in-patient hospitalizations, or 2) fatalities resulting from a work-related exposure to the virus. A hospitalization for COVID-19 only becomes reportable when the employee receives a formal admission to the in-patient service of a hospital or clinic for care or treatment (not merely observation or diagnostic testing) within 24 hours of exposure to COVID-19 in the workplace. Employers must report such a hospitalization to OSHA within 24 hours of knowing both that the employee became hospitalized and that the hospitalization resulted from a work-related case of COVID-19. This scenario has a lower probability given COVID-19’s epidemiology, where individuals typically remain asymptomatic for the first 24 hours after exposure and hospitalizations (if they occur) happen later in time. A fatality due to a work-related case of COVID-19 is reportable if it occurs within 30 days of the exposure to the virus in the workplace. Employers must report such a fatality within eight hours of learning that the employee died as a result of a work-related case of COVID-19.

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].