Employers face a Catch-22.
On the one hand, they could be liable for retaining employees who infect others with coronavirus.
And on the other, they must maintain the privacy of staff’s medical and other health information under federal law.
So what’s the best way to comply, and safeguard businesses and employees?
Here’s what lawyers suggest.
HIPAA and negligent retention
Negligent retention occurs if an employer retains an employee whose actions could be harmful to the other employees. There are ways to uncover pertinent information relating to employee safety, but the potential for violating the Health Insurance Portability and Accountability Act makes it imperative to exercise caution when obtaining and acting on it.
In other words, the employer must keep staff safe, while taking into account privacy restrictions under HIPAA.
That’s important because when it comes to assigning blame, the law considers what the employer knew.
For instance, if the staff member fails to disclose that he or she has an illness, or doesn’t exhibit any symptoms, then the employer is likely not liable for an infection that this worker spreads to other, advises Jezabel P. Lima, a partner of Levine Kellogg Lehman Schneider + Grossman in Miami, who specializes in labor and employment law.
Lima cites to guidance from the Centers for Disease Control and Prevention, saying an employer does not have a duty to take the temperatures of their staff. It is all based on what the employer knows or should reasonably know.
“if an employee calls out sick and they tell you, ‘I had a fever and my throat is bothering me,’ and they call out that day, and the next day that employee shows up to the office, now you can see where you can have a situation where you potentially have a negligent retention on your hands,” Lima said.
‘We’re not doctors’
With the COVID-19 epidemic, attorneys say businesses have a heightened duty to determine whether to direct staff to stay at home.
“We’re not doctors,” Lima said. “It comes back to: Did we make an appropriate investigation?”
Part of that investigation could involve the use of a pre-aggressive confidential questioning to guide the employer’s actions, advises Juan Enjamio, a partner at Hunton Andrews Kurth.
Pre-aggressive confidential questioning allows the firm to identify if a person had contact with a known coronavirus carrier, or with someone who’s been exposed to the virus.
“The employer still has to be very careful to maintain the privacy of employee health information,” Enjamio said. “Whatever the employer learns cannot be communicated to anyone else, except on an absolute need-to-know basis.”
Beyond questioning, employers should be mindful of the latest information on the medical and legal landscape. Authoritative sources in the public health arena can help a company or corporation align its policies on the coronavirus pandemic with the latest official recommendations.
The Florida Department of Health reported 137 cases and four deaths from coronavirus in the state as of Monday. And the number of cases and deaths in the United States is rising, according to the CDC, which Sunday recommended limiting gatherings to no more than 50 people for the next eight weeks.
Attorney Enjamio advises his clients to stay abreast of the latest announcements from public health agencies. He also recommends they remain mindful of measures by local and state governments. For instance, Miami Beach and Fort Lauderdale are closing public beaches and non-essential business by 10 p.m. withing their cities, while Miami-Dade made a countywide rule that forces bars, restaurants and nightclubs to close at 11 p.m., starting Monday.
“The regulatory and legal landscape of laws being passed are changing,” Enjamio said. “You have to keep up with that because it is changing rapidly.”