To Disclose or Not to Disclose (a COVID-19 Positive Employee) – That is the Question

October 15, 2020

A recent conversation with a family member reminded me that many employers and employees are unaware of the workplace reporting requirements when a colleague tests positive for COVID-19. In this case, the family member almost missed out on a trip because a person her spouse had indirect contact with showed up to work for two days after testing positive for COVID-19. This highlights several important issues: reporting test results, contact tracing, and personal protective equipment standards. Due to its novel nature and the uncertain legal landscape surrounding the ongoing pandemic, many employers are unaware of their reporting obligations or how to otherwise handle an employee’s positive test.

In early October, the Occupational Safety and Health Administration (OSHA) updated its ongoing guidance regarding the reporting of employees who have been hospitalized or who have died from COVID-19. Employers are now obligated to inform OSHA of any in-patient hospitalization of an employee that occurs within twenty-four hours of workplace exposure to COVID-19. Employers must also report any COVID-19 related employee death that occurs within thirty days of workplace exposure. While these requirements provide for employer transparency and accountability in reporting to OSHA, they do not require disclosure to other employees who may have been exposed.

During the pandemic, employers must navigate the murky waters at the intersection of workplace safety and employee privacy. With the exceptions of disability and genetic information and information obtained through a Family Medical Leave Act (FMLA) request, there is no general confidentiality law for employee medical information in Pennsylvania. However, employee medical information is protected under the federal Americans with Disabilities Act (ADA), so employers must tread carefully if they disclose their employees’ personal health issues to coworkers. In addition to some expectation of privacy, employees have the right to a safe workplace, including the right to be free from exposure to coworkers infected with COVID-19 and to know if such an exposure may have occurred in order to protect themselves and any vulnerable friends or family members. This privacy interest must be balanced with the need to protect employees from harm–and protecting the employer from liability.

Generally, employers should take a few precautionary steps to be prepared if and when an employee tests positive. In addition to reviewing HR Legalist’s prior guidance, including Returning to Work after COVID-19 Lockdowns: Mitigating and Managing, employers need to effectively address COVID-19 positive employees.  First, employers should track who is present at the workplace each day in order to facilitate contact tracing. This process can narrow the number of exposed employees who need to be notified in the event of a positive test. Second, employers should take reasonable steps to limit exposure in common areas, such as requiring face covers and supplying hand sanitizer. If despite these efforts an employee tests positive, the employer should notify any other employee who came into contact with the diagnosed employee without identifying the diagnosed employee. The employer should then take reasonable steps to prevent an outbreak by cleaning and disinfecting areas where the infected employee has been.

These are just a few simple and reasonable steps that employers can take to reduce exposure to liability and negative impact on business operations. Lawsuits are just starting to hit the courts over COVID-19 related litigation and it has yet to be seen how courts or juries will rule in these cases. OSHA’s guidance makes it clear that a liability waiver will not prevent liability under OSHA if the employee’s right to a safe workplace is violated. One of the first test cases for COVID-19 related workplace safety in Pennsylvania is currently being litigated in the Eastern District of Pennsylvania and could lay the groundwork for future pandemic related cases in Benjamin v. JBS S.A. As the case law develops, the framework will be established for employer responsibilities during pandemics and national emergencies. For the time being, reasonable preventative measures based on the most recent CDC and local health department guidance, and thoughtful consideration of employee safety, are important steps for responsible public health and avoiding liability.  Obermayer’s employment attorneys and COVID-19 task force are available to assist employers with these issues.

The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.