Can Employers Legally Say Who Failed a Covid Test?

This week Covid-related deaths in the United States surpassed 800,000. Those staggering numbers plus new variant concerns are causing many people to feel on edge. That’s especially true when hearing that a colleague at work has a positive Covid test. But what happens if you want to know exactly who it is so you can determine your potential exposure? Sorry, no dice. Unless the person volunteers their own status, as an employee you probably won’t get that information.

Owing to current health information protection laws, in general, an employer cannot legally “out” the person with the positive result. However, all employees also have a right to a safe work environment. So, when it comes to Covid, it’s important to know current regulations to help keep everyone as healthy and informed as possible.

What Health Information Can Employers Share and with Whom?

If an employer discovers an employee has a positive Covid test, they must not disclose the employee’s identity or any other identifying information. This is especially true if the employer finds out about the diagnosis through the employee’s health insurance claims.

The HIPAA Privacy Rule ensures that an individual’s personal health information is properly protected. In that way, employers cannot discriminate against specific employees because because of a medical condition.

At the same time, the Equal Employment Opportunity Commission does allow employers to share the infected employee’s name and information with the appropriate public health authorities. This is to ensure that these agencies receive important data needed to promote societal well-being and safety. Public health agencies can also help employers understand what protocol to follow once they discover an employee’s positive Covid test.

However, employers must also make sure they transmit that information in a secure manner. It is still the responsibility of the employer to ensure that as few individuals as possible know these results.

The HIPAA Privacy Rule strikes a balance by permitting vital public uses of personal information while protecting the privacy of individuals seeking medical attention.

Can Employers Tell Employees About a Positive Covid Test?

An employer cannot divulge the infected employee’s identity. However, they can — and should — alert other employees that they may have come in contact with the virus.

Federal labor laws require that employers provide a safe work environment for their employees. If employers don’t share potential exposure info, employees could hold them legally responsible for intentionally concealing a workplace danger.

That being said, deciding exactly who may have been exposed can be a bit of a judgment call. To start, an employer should conduct a “close contacts analysis” of the workplace.

An employer may ask the employee with a positive Covid test to provide a list of individuals (employees, clients, contractors, vendors) they were in close contact with at work during the last 14 days. This could also include information such as whether they frequented shared spaces like the cafeteria or certain bathrooms.

Then, at minimum, the employer should notify anyone the Covid-positive employee coughed or sneezed around. Or, any individual who spent a prolonged period of time within six feet of the Covid-positive employee. The gray area comes into play when considering that there can be a lot of mobility within a building.

An employer may choose to alert their entire company, but also weigh that against the risk that employees might panic. Alternately, if only a very small subset is notified, it may be too easy to guess who had the positive Covid test. Remember, employers must protect the sick employee’s identity.

For these reasons, an employer may ultimately decide to inform just one department or one floor, for example. That way, the employer notifies those most likely to suffer exposure while still respecting health privacy laws.

Are There Any Exceptions to This Rule?

In companies with less than 15 employees, the EEOC guidelines don’t really apply. For example, family-owned businesses with less than 15 workers total may choose to share employee information (or coworkers may figure out who’s sick on their own) without violating HIPAA, the American Disabilities Act (ADA), or federal EEOC guidelines.

Also, an employer may ask whether an employee is comfortable disclosing symptoms or a positive Covid test to other employees. However, in this case, employers should be very careful not to pressure the employee into feeling like they must share. Any disclosure of identity under these circumstances has to be completely voluntary on the part of the employee.

What Else Should an Employer Do to Protect Their Other Employees After a Positive Covid Test?

Management should let employees who may have been exposed know what they can do to minimize further Covid spread. This may involve working from home or self-quarantining, as well as monitoring their own symptoms.

An employer is also responsible for taking extra safety precautions for all employees after one reports a positive Covid test. This may involve extra cleaning or disinfecting work areas, or even shutting down entire office sections.

Finally, employers should require all employees working in an office to report any positive Covid tests to them. This may also include reporting potential direct exposure to someone with Covid.

The ADA allows employers to make medical inquiries of employees who pose a “direct threat” to the health and safety of themselves and others in the workplace. Upon receiving such information, an employer should require said person to work from home (if they’re not already remote).

The bottom line is that we’re still not out of this pandemic. And testing is a great tool to help mitigate the spread. But employers must take immediate action when an employee reports a positive Covid test.

The trick is finding the balance between personal health information privacy and every employee’s right to a safe workspace.

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