Fear around COVID-19 abounds and as a result, some employers are not following the law when it comes to privacy and employee rights. All California employees have the right to privacy in varying degrees. Employee privacy rights set boundaries to how extensively an employer can search an employee’s possessions or person; monitor their actions, speech, or correspondence; and know about their personal lives.

Testing

Does your employer have the right to demand that you are tested for coronavirus before coming to work? Generally speaking, yes. Under the ADA’s direct threat analysis, an employer that reasonably believes, based on an individualized assessment, that an   employee has symptoms of a condition (including coronavirus) that poses a direct threat to the employee or others can require that the employee undergo medical testing to determine whether the employee is infected.

Additionally, while temperature checks previously constituted an overly broad medical exam under the Americans with Disabilities Act (ADA) and various state non-discrimination laws, as of March 19, 2020, that has changed. According to the EEOC, “If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.”

If your employer shares the results of your coronavirus test with your co-workers without your permission, you may be able file a legal claim.

HIPPA and Covid-19

When it comes to your health status, including whether or not you tested positive for coronavirus, employers must be considerate of your medical privacy rights, which generally prohibit disclosure of personal health information without proper consent or authorization. Privacy laws also place restrictions on an employer’s ability to request health data from its employees and require that the employee is notified if there has been an unauthorized access or acquisition of that employee’s medical information. In addition, common law defamation or invasion of privacy claims can come into play when an employee is falsely identified as having coronavirus.

It is important to note that coronavirus or not, employers must continue to comply with the protections outlined under the Health Insurance Portability and Accountability Act (HIPAA). Employers should treat all medical information, including your health status, as confidential and afford it the same protections as those granted by HIPAA.

If you test positive for COVID19, your employer may, in the interest of public health, inform your co-workers that one of their colleagues has been diagnosed. However, it is very unlikely that your employer needs to name you during the process. If your employer does unnecessarily provide your name or identifying information, your rights to privacy may have been violated.

These are very fluid times and the lines of what is and is not acceptable can often become blurred. For a no obligation consultation about your employer’s violation of your employee privacy rights, contact attorney Eric A. Boyajian today.