HR Hero Line

Privacy vs. practicality: when expectations collide

by Jo Ellen Whitney

Plenty of reporters, commentators, and the twitterverse have all made statements that Hillary Clinton is way too invested in her personal privacy, citing various examples, including most recently her health.  As you will remember, former Secretary Clinton was escorted from the New York 9/11 memorial service appearing ill and there was a significant delay before her handlers indicated that in fact, she was suffering from pneumonia.  On the flip side, Donald Trump has also been accused of hiding things, ranging from his own potential health condition to a failure to release his tax returns.  Stepping away from the MMA bout that is modern politics, are there times when an employer’s right-to-know supersedes an employee’s right to privacy? 

Safety
Safety of the individual employee and others that the employee may come into contact with, including coworkers and clients, can easily form a basis for the employer requesting information that might otherwise be private.

Fall is the start of flu season (and apparently pneumonia) and employees are always concerned about contagious employees.  One employee with an active case of flu can take out the entire floor within a week, gutting your staff for days on end.  The Centers for Disease Control and Prevention (CDC) indicates that, on average, somewhere  between 5 and 20 percent of the population annually will get the flu with more than 200,000 people hospitalized from flu complications.  It is reasonable to take the issue seriously.

In general, anyone who has active symptoms, whether it’s the cold, the flu or “what is going around” should be sent home to avoid the risk to other employees.  Active symptoms typically include vomiting, diarrhea or fever of 100 or more. While the flu virus can remain active and contagious for more than seven days after the onset of illness, in general the CDC recommends that employees return to work 24 hours after symptoms, such as vomiting or diarrhea, end and the employee has been fever free (below 100 degrees Fahrenheit), without fever relievers such as acetaminophen, for 24 hours. (See October 23, 2009 CDC recommendation regarding H1N1 Flu.)  As an employer, if an employee shows up, coughing, hacking, bright red in the face, and sweating profusely, or possibly showing symptoms such as the measles rash, send him home and require medical clearance before he returns.

Whether or not certain illness has an impact upon job responsibilities can also be job-specific.  While an employee with hyper resistant MRSA might be able to fulfill a wide array of job functions, it is unlikely if she is a healthcare worker that she could work in pediatrics, immune-compromised wards, or a surgical center.

Employee health is a bit of a slippery slope for an employer; as the Equal Employment Opportunity Commission (EEOC) has clearly indicated that the employer does not have the right to access information regarding underlying illness for an employee. That is clear in the EEOC guidance relating to HIV/AIDS and accommodation request, which is quite clear that the employer does not have the right to inquire as to an underlying AIDS/HIV diagnosis.

However, employers can impress upon employees the necessity of safety and issues relating to contagious diseases, particularly in industries where there is high risk or safety sensitive functions.  Further, in various states including Iowa, healthcare workers and those in certain other industries may have to undergo TB tests or contagious disease screenings in order to ensure the safety of products and people served.  Visible symptoms, which tend to be work disruptive, can also be addressed by the employer, including issues such as fever and vomiting.

The flu is not the only thing that can result in a safety risk in the workplace.  Employees may also face other types of issues in their personal lives which can impact upon workplace behavior as well as the safety of that employee and coworkers.  This might include various circumstances such as threats made to the employee in a domestic abuse or similar situation.  Further if an employee has a restraining order against someone and violence has either occurred or been threatened it may be important for the employee to speak confidentially with an HR manager or designee to make a determination for safety planning within the workplace.

Accommodations
An employee who has an illness, injury or other condition which requires accommodation within the workplace will also need to speak with the employer as part of the interactive discussion required by the American with Disabilities Act (ADA).  Note, that the ADA requires a discussion, not a monologue, which means both the employer and the employee will have to participate in assessing reasonable accommodations and management of any performance issues that may occur.  While an employee may prefer not to discuss his mobility issues, migraines, or potential mental health concerns if that employee expects to receive accommodation within the workplace, that employee will have to provide enough information for the employer to be able to assess what is and is not reasonable. The same is true of any employee requesting leave through the Family and Medical Leave Act (FMLA).  While the underlying condition is not typically required to be revealed, the employer must have sufficient information to assess the need for leave and whether or not the issue is in fact covered under FMLA.

Finally, in relationship to the workplace, employees who have intermittent leave or may need amended job duties should discuss with their employer communication with coworkers.  One of the issues that frequently occurs with intermittent FMLA leave is employee morale problems where other employees look to an employee who they feel is “getting out of” the hard, messy, or dirty jobs and begin to feel resentful that that employee doesn’t have to put in as much effort.

Discussing with the employee who needs the accommodation how those concerns will be communicated to fellow employees, what, if any, information can be provided to those employees about the medical condition can be a critical internal PR process.  Even just the idea an employee will be told there is a need for accommodation, and while the employer will not discuss details, they have a full process which they are working through to assist the employee is something that becomes a positive part of the employer/employee conversation.

Reporting
Employees also should be informed and trained that they have an affirmative obligation to report certain kinds of behavior in the workplace when it will impact upon the safety of coworkers or the management of the business.  That can include unsafe work practices such as interference with machinery, failing to lock out/tag out or other unsafe practices.  This affirmative duty to report can relate to social and similar behavior which is not part of the standard job duties or even part of the work day, if it affects safety, service quality, or violates law.

One example is the recently issued memo from the Center for Medicare and Medicaid Services (CMS) relating to long-term care providers. It states that taking and posting video, photos, and other items of residents in long-term care facilities is a violation of residents rights to dignity and care. That conduct is actionable, constituting resident abuse.

CMS is very clear that each employee has an individual obligation to monitor and report behavior of this type regardless of whether or it occurs from coworkers, consultants, contractors, volunteers, and other caregivers.  (See CMS August 5, 2016 Memorandum/Reference S and C: 16-33-NH)  The key component of this requirement, as well as a wide array of other laws that require that employees self police including Health Insurance Portability and Accountability Act (HIPAA) and various Occupational Safety and Health Administration regulations, is that the employer must be very clear that an employee has an obligation to report and will not be retaliated against for bringing concerns of this type to the employer.

Bottom line
In the modern world, privacy is a slippery concept, celebrities post nude selfies on Snapchat while at the same time complaining that similar nude pictures are hacked on their iCloud accounts. Anthony Weiner continues to garner headlines and your employee might be posting pictures of what she ate for breakfast or his new groin tattoo.  In a shifting environment it is important to have discussions with employees about your expectations regarding safety, accommodation, and compliance issues so employees understand where privacy begins and ends in the workplace.

Jo Ellen Whitney is an attorney with Davis Brown Law Firm in Des Moines, Iowa. She may be contacted at  joellenwhitney@davisbrownlaw.com.