Covid-19 and ADA Confidentiality Obligations

Posted on Jul 2, 2020

Employers covered by the Americans With Disabilities Act (i.e., generally, those with 15 or more employees) are required to keep an employee’s medical information confidential.  There has been some uncertainty as to whether these obligations apply to medical information related to COVID-19.  Specifically, employers want to know what they can require their employees to disclose and what they can do when symptoms or a positive test have been identified in the workplace.

  • Employers should require all employees to disclose whether they have tested positive for COVID-19 and/or whether they have been in contact with someone who has tested positive.  The ADA allows employers to make sensitive medical inquiries of employees who pose a “direct threat” to the health and safety of themselves or others in the workplace and COVID-19 infection or exposure poses such a threat.
  • An employer may ask an employee if the employee is willing to disclose symptoms or a positive diagnosis to others, or if the employee is comfortable with the employer doing so.   Any disclosure of identity under these circumstances should be strictly voluntary on the part of the employee. Employers should not pressure an employee to agree to either form of disclosure and should not retaliate against an employee who does not permit such disclosure.
  • If an employee tests positive for COVID-19, employers should ask the employee to provide a list of individuals (employees, clients, contractors, vendors) with whom the employee had contact in connection with their employment during the last 14 days. Employers may inform other employees that another employee may have come into contact with someone with COVID-19.  However, the employer is not allowed to disclose who the person is, except where expressly permitted by the employee who tested positive.
  • Employers should ask an employee who has symptoms or who has been exposed to someone with COVID-19 to self-quarantine (work from home, if possible) until they have been medically cleared.

For more information on this topic, contact Sandra White, Keith Sieczkowski or Emily Arnold, Labor & Employment Lawyers with Branscomb Law. Sandra’s contact information is swhite@branscomblaw.com or (210) 598-5400. Keith’s contact information is ksieczkowski@branscomblaw.com or (361) 886-3800.  Emily Arnold’s contact information is earnold@brascomblaw.com or (361) 886-3800.