Reporting an employee with COVID symptoms

Issue: After being shut down for many months due to the pandemic, your company’s worksite has reopened to employees. Precautionary measures, including temperature checks and social distancing, are being taken to prevent anyone with COVID-19 from being at the worksite. However, the site manager recently learned that one employee has COVID-19, or has symptoms associated with the disease. She knows she must report it but is worried about violating the confidentiality provisions of the Americans with Disabilities Act (ADA). What should she do?

Answer: The ADA requires employers to keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19 is medical information. However, the fact that this is medical information does not prevent the manager from reporting it to appropriate employer officials so that they can take actions consistent with guidance from the Centers for Disease Control and Prevention (CDC) and other public health authorities.

The question is what information to report: is it the fact that an employee — unnamed — has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who learn the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those individuals without revealing the employee’s identity. 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 on disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

Source: EEOC Technical Assistance Questions and Answers: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Q&A #B5, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, reported in Employment Practices Guide, New Developments

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