Employer Considerations and Checklist After Learning of a Positive COVID-19 Test
There are two separate but related considerations when an employer discovers an employee has tested positive for COVID-19: privacy considerations for the employee who tested positive, and safety considerations for all other employees. The latter also applies when an employer discovers a non-employee has tested positive for COVID-19 including a client, customer or vendor who has been physically present in the workplace.
Privacy Considerations for Employee
If an employer discovers an employee has tested positive for COVID-19, the employer must be aware of privacy laws and understand whether they apply. There are confidentiality requirements under several federal laws, as well as state privacy laws, but the key laws discussed briefly here are the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA).
The ADA generally requires employers that receive medical information about employees, treat the information as a confidential medical record, even if the medical information was voluntarily provided by the employee. That means the employer cannot disclose the name of the individual, or personally identifiable information about that person, to other employees. If an employer becomes aware of an employee’s positive COVID-19 test, the ADA applies, and regardless of the specific facts, the employer should be aware of and follow the ADA confidentiality requirements.
HIPAA generally requires safeguarding Protected Health Information (PHI). An individual’s positive COVID-19 test information is PHI. However, HIPAA may or may not apply depending on the particular facts of the situation and how the employer obtained the information. HIPAA’s obligations to safeguard PHI applies only to covered entities (and business associates). So, it is important to determine whether, at the time the information was obtained, the employer was acting within the context of its administrative role for the group health plan. If so, HIPAA applies, and the employee’s positive COVID-19 test must be safeguarded under the HIPAA rules. However, if the information was obtained when the employer was acting in its capacity as an employer (for example, if an employee tells her supervisor she has tested positive for COVID-19), then HIPAA will not apply.
Because of this somewhat difficult technical distinction within HIPAA, and because the ADA will apply regardless of whether HIPAA applies, it is a good rule of thumb to treat an employee’s positive COVID-19 test as though it is PHI protected under HIPAA.
Privacy Precautions
⬜ Keep the identity of the COVID-19-positive employee confidential and do not provide the name of the employee who tested positive to others.
Do not provide any other information related to the employee that could reasonably be used to identify the individual.
⬜ Do not provide any other information related to the employee that could reasonably be used to identify the individual.
⬜ Keep in mind the HIPAA “minimum necessary” standard and limit the information disclosed to that which is the minimum necessary to accomplish the purpose.
Privacy Precautions
Maintain full written documentation regarding the incident.
Privacy Precautions
Privacy Precautions






