Q: We have asked our supervisors to be on alert to employee symptoms of COVID-19 and to report to our HR Director any employees they observe coughing or experiencing other COVID-19 symptoms in the workplace. If the HR Director follows up with the employee, does this violate ADA confidentiality?
A: No. The ADA does not interfere with a designated representative of the employer interviewing the employee to confirm COVID-related symptoms and ascertain close contact information. Medical information learned, however, must be kept confidential and maintained consistent with ADA storage requirements.
The Americans with Disabilities Act (ADA) requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. The fact that this is medical information, however, does not prevent the supervisor from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.
On September 8, 2020, the EEOC updated its technical assistance document, What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws, which addresses common questions about COVID-19 and federal employment laws. Importantly, the Agency emphasized that the ADA does not interfere with a designated representative of the employer interviewing an employee to confirm COVID-related symptoms and obtain identity of individuals with whom the employee possibly had contact through the workplace. Specific provisions exist, however, regarding the confidentiality of this information.
With limited exceptions, the ADA provides that employers must keep confidential any medical information they learn about an applicant or employee. 42 U.S.C. § 12112(d)(3)(B). Importantly, information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. This would include COVID-19 symptom screening information, completed close contact interview forms and requests for accommodation or requests to telework.
Notably, the ADA confidentiality laws require storage of medical information maintained in a location separate from the employee’s personnel file. 42 U.S.C. § 12112(d)(3)(B). If stored electronically, the documentation must not be maintained where others would have access. Additionally, the EEOC recommends the use initials or another code to further ensure confidentiality of the name of an employee.
Critically, ADA confidentiality provisions prevent identification of an individual subject to quarantine identified in any close contact notification letter or other communication. The EEOC’s update explains, “using a generic descriptor, such as telling employees that ‘someone at this location’ or ‘someone on the fourth floor’ has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information.” While coworkers might be able to discern who the employee is, employers in that situation are prohibited from confirming or revealing the employee’s identity. This is true of those granted a telework assignment or leave under any provision of the Families First Corona Virus Response Act as well. Supervisors may share that a particular employee is teleworking, but not the reason for telework or the basis for leave.
Check your Mitigation Plan to ensure that employer officials who are designated as needing to know the identity of an employee testing positive, subject to quarantine, on leave or teleworking due to a COVID-19 reason are specifically instructed regarding the maintenance of confidentiality and storage of the medical information. For more information regarding ADA confidentiality, contact your local school district attorney.