DISCLOSURE OF COVID-19 TESTING RESULTS AND MEDICAL PRIVACY

TIMOTHY K. TALBOT
Principal
VANCE PIGGOTT
Associate
Rains Lucia Stern St. Phalle& Silver, PC

As the number of confirmed COVID-19 cases increase each day, public safety employees are understandably concerned about exposure to the virus at work. Employers also want to ensure that employees who contract the virus are isolated or quarantined in order to minimize the risk of exposing co-workers to the virus. Prompt identification of employees with symptoms of COVID-19 often leads to assertions that employees showing symptoms of COVID-19 should be tested: both to document a work-related illness and to identify employees who should be removed from the workplace to protect other employees from exposure.

The extent to which public employers can require their employees to undergo COVID-19 testing and whether those employers are entitled to know the results of such a test are increasingly being asked by employees. As a general matter, we assume employees who strongly believe they have been exposed to COVID-19 or are exhibiting signs of the virus would want to be tested in order to take appropriate action to address the situation and treat any actual infection. But what about an employee who does not believe he or she has been exposed or is infected? Can the employer force the employee to submit to a coronavirus test?

The Equal Employment Opportunity Commission has advised that employers may ask employees if they are experiencing symptoms of COVID-19, measure an employee’s body temperature and send employees home if they exhibit symptoms of COVID-19. But what about requiring employees to be tested for COVID-19? Generally speaking, employers can only require existing employees to undergo medical examinations when there are objective indications an employee is unfit to perform the essential functions of their jobs or would pose a significant health and safety risk to co-workers and the public. Currently, the Centers for Disease Control and Prevention does not recommend testing anyone for COVID-19 unless there is reason to suspect the employee has come in contact with an infected individual. If the employer does believe an employee has been exposed to COVID-19 or an employee is otherwise showing symptoms of the virus, an employer could require the employee to be tested for COVID-19 and the employer would be responsible for the cost of the test.

The result of a COVID-19 test is protected health information covered by the Health Insurance Portability and Accountability Act (HIPAA) and similar California laws. Those laws generally prohibit disclosure of a person’s protected health information. However, HIPAA permits disclosure of otherwise confidential health information under certain circumstances, including the national health risk created by the spread of COVID-19. Additional exceptions apply to first responders.

The Office for Civil Rights at the Department of Health and Human Services and the California Department of Fair Employment and Housing recently published information on the applicability of HIPAA to protected health information relating to COVID-19 for law enforcement, paramedics, other first responders and public health authorities. The publications indicate that COVID-19 test results for public safety employees can be disclosed under certain conditions by health-care providers and received by employers during the current health emergency. Before disclosing otherwise protected health information, however, the entity in possession of the information must make reasonable efforts to limit the disclosure solely to information that is necessary to accomplish the purpose of the disclosure. Therefore, even when disclosure is permitted, the amount and types of information disclosed should be limited to the particular need for the information.

About the Authors
Timothy K. Talbot is a principal at Rains Lucia Stern St. Phalle & Silver, PC, and manages the firm’s Sacramento office. Talbot is a member of the Collective Bargaining Practice Group and manages the Labor Litigation Group, where he oversees the firm’s representation of public- and private-sector employee associations and individual clients in litigation.

Vance Piggott is an associate in the RLS Collective Bargaining, Legal Defense of Peace Officers and Litigation Practice Groups.