COVID-19, Your Employees and the Law

Essential businesses that have remained open during COVID-19 safer-at-home ordinances, and those that are opening again as some states loosen restrictions, have had some entirely new concerns about the laws that may affect important but previously unpracticed daily protocols. It’s certainly important to establish the safest possible environment for your employees, customers, and clients. But, if your business is doing temperature checks on the team or offering virtual medical appointments during the workday, are you responsible for adhering to healthcare privacy laws or other regulations?

 

Employment and Civil Rights Protections During COVID-19

 

It’s always of utmost importance to protect the civil rights of everyone employed by your business, but awareness and mitigation of potential violations must be heightened during a public health emergency of this magnitude.

 

Suspicions can run high when employees are afraid, but it’s important to maintain a safe environment for anyone on the receiving end of the rumor mill. Some of the ways employers can help reduce both anxiety and worker discrimination can be found on the CDC Reducing Stigma webpage. Additional information about civil rights protections can be found in Mar. 28, 2020 Bulletin from the Department of Health and Human Services (HHS).

 

HIPAA Privacy Protections for Employees During COVID-19

 

In its summary of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule, HHS writes:

 

“The Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper or oral. The Privacy Rule calls this information “protected health information (PHI).”

 

A temperature check is considered a medical examination and would generally fall under this rule, but allowances for the procedure have been made by the CDC and/or local health authorities because of the health emergency. In other words, the HIPAA Privacy Rule may not apply to employers in this context of workplace COVID-19 screening. But, in its Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), the CDC says:

 

“If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).”

 

Employee Protections Will Be a Balancing Act

 

Taking the above guidance into consideration, you and every employer that’s outside the healthcare industry will have to manage a difficult balancing act during this unprecedented health emergency. Everyone is on a learning curve and while there is surely room for error, it is important to make a good faith effort to adhere to the regulations that are in place. Talk to your legal counsel and communicate with your local health authorities to gain clarity. This may the most important time in the life of your business to be overly cautious and overly informed about the laws that affect you and your team.

For more in-depth information about how COVID-19 affects privacy and your business, visit this recent blog by Nicolas Dufour, our EVP and General Counsel. ClearStar is here to provide background screening and other HR solutions for your business. Contact us to learn more about how our team works for you while offering protections like up-to-the-minute compliance with changing employment, data, and privacy laws.

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