business

When It Comes to Coronavirus, Can My Boss Do That?

From enforcing temperature checks to testing for COVID-19 and whether the results of those tests must be kept private, here's what lawyers have to say on new workplace issues cropping up.

Baker McKenzie, one of the world’s largest law firms, with 77 offices across more than 45 countries, has put together a Q&A on coronavirus to shed some light on your rights as an employee and your responsibilities as a business owner.

Q: Can an employer lawfully conduct temperature checks of employees on its premises?

Answer: Yes. Temperature checks are now permitted, given the circumstances of the crisis with COVID-19 and the fact that it is now considered to be a pandemic. The checks should be non-invasive where possible, including by using temporal scanners or other thermometers that do not require employees to make physical contact with the thermometer. Employers can also ask employees to check their own temperature before coming to work or once arriving at work, as part of an effort to prevent illness transmission in the workplace.

Q: Can an employer require employees to inform HR or their line manager if they have been diagnosed with COVID-19 and/or have symptoms of the virus?

Answer: Yes. For the health and safety of the workforce, employers can now require employees to inform HR and/or their line manager if they have been diagnosed with COVID-19 and/or if they are experiencing symptoms of the virus (if their temperature rises above the normal threshold — usually 100.4 — and/or if they are experiencing flu-like symptoms).

Q: Can an employer require employees to complete a declaration or self-assessment as to whether they have or have plans to travel to any of the high-risk areas, as designated by the World Health Organization (WHO) or local government, or whether they have been in close contact with someone who has been positively tested for COVID-19?

Answer: Yes. For the health and safety of the workforce, employers can require employees to complete a declaration of whether they have visited (or plan to visit) any of the high-risk areas designated by the WHO and/or the CDC. Employers should be mindful that Title VII and state law prohibit discrimination based on race, color, national origin and other protected classifications. The Interim Guidance for Businesses and Employers released by the CDC (referenced below), specifically states that “to prevent stigma and discrimination in the workplace, use only the guidance [provided by the CDC] to determine risk of COVID-19. Do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed COVID-19.”

Q: Have data privacy regulators issued any guidance either permitting or restricting the collection of personal data for purposes of identifying COVID-19 cases?

Answer: Not specifically. As of the time of writing, U.S. authorities have not released guidance specific to the collection of personal data for purposes of identifying COVID-19 cases other than stressing the need for confidentiality in any recordkeeping efforts.

In general, the CDC has released Interim Guidance for Businesses and Employers, available at: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html/. Also, the Equal Employment Opportunity Commission ("EEOC") has previously issued guidance from 2009 — which it just updated on March 21, 2020 — for employers in the context of pandemics under the ADA, available at https://www.eeoc.gov/facts/pandemic_flu.html#8 In addition, the Office for Civil Rights, Health & Human Services, issued guidance stating that federal health privacy law authorizes employers to request protected health information from health care providers without employees' consent, if necessary to "prevent or lessen a serious and imminent threat." The guidance makes clear, however, that health care providers are not required to provide the information, and should use their own professional judgment in deciding whether to do so. See https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf.

Q: Is an employer permitted to disclose the identity of any worker who is confirmed to have COVID-19 to other co-workers?

Answer: No. The ADA establishes the basic rule that, with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee (42 USC § 12112(d)(3)(B)). The CDC's Interim Guidance for Businesses and Employers also cautions employers on this topic and reminds them of their confidentiality obligations. Under this Guidance, however, employers can inform other employees that they may have been exposed to the virus so long as they maintain confidential the impacted employee’s identity.

Contributing: Amy de La Lama, Harry Valetk, Mike Egan, Brandon Moseberry, Cristina Messerschmidt and Robin Samuel.

About the Author

Brian Hengesbaugh, Esq.

Partner, Baker and McKenzie LLP

Brian Hengesbaugh is Chair of the Global Data Privacy and Security Business Unit at Baker & McKenzie LLP, a Member of the Firm's Global IP Tech Steering Committee, and a Member of the Firm's Financial Institutions' Group.

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