The swine flu pandemic is raising new privacy issues for corporate America (For an update on other employee privacy issues, see "Private Practices"). While employers may want to find out whether sick employees have swine flu symptoms and convey that information to other employees, the Americans with Disabilities Act (ADA) and state laws limit the medical information employers can seek from employees and require them to keep such information confidential.
The EEOC issued guidance on this topic, advising that an employer can send employees home if they display influenza-like symptoms during a pandemic. It also said that employers may ask employees who report feeling ill at work or who call in sick if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. However, some state laws are more restrictive than the ADA.
"Employers are very limited in their ability to ask current employees about health conditions," says Christine Lyon, a partner at Morrison & Foerster. "In California, you would not ask what the employee's illness is."
What an employer can do, Lyon says, is require someone who is out of the office sick for three or more days, or who the employer thinks not well enough to be in the workplace, to get a doctor's note saying he or she is well enough to return to work.
"I think it's a matter of being careful and planning in advance, too," she says. "It is easy to get alarmed and ask a lot of questions and potentially jump to a lot of conclusions about whether an employee's condition is swine flu. And if you get that information, what do you tell other employees?"
According to the EEOC, you can't identify employees who have swine flu. "Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA," the EEOC guidance says.
"It's difficult, and the more employers think about how they will handle these situations in advance, the better," Lyon says. "If you have an employee who tells you, 'I've been diagnosed with swine flu,' then you want to tell the employees, 'Someone in our workplace has been diagnosed, so if you have these symptoms, please go home.' But that's different than saying, 'Jane Doe has been diagnosed,' and suddenly raising potential legal problems."
Joseph Lazzarotti, a partner at Jackson Lewis, agrees that employers must handle such situations carefully to navigate ADA and privacy concerns, and must make difficult decisions in the absence of court rulings clarifying these issues.
"You don't have to identify the person. You can verbally redact that information," he says. "But if it's a small shop, everyone will know who it is. As a practical matter, some things are unavoidable and I don't know that they necessarily would be a violation. At some point there has to be some reasonableness injected into all this, particularly with a pandemic situation."
To minimize liability, Lyon recommends talking to the ill employee before saying anything to co-workers.
"I recommend saying, 'We think it is important to tell the other employees we have had someone diagnosed. We are not going to mention your name, but is that OK with you? Are there particular people you have had contact with in the last few days at work, and is it OK if we talk with them?' The more you get the employee's buy-in, the less you will be startling them and the stronger your defense would be to an employee privacy claim."
Lyon thinks some employers have a false sense of security that a severe pandemic trumps any privacy laws, but she rejects that notion.
"When the dust clears and the panic subsidies, and you have an employee who feels his or her privacy has been invaded, you can still end up with a claim," she says. "So thinking in advance about these privacy issues is helpful, because it is difficult to make those judgment calls on the spot."