We all know neither Google nor Facebook has a legal degree, but that doesn’t stop your employees from acting as if the social media platforms do. More than one employee has probably pushed back on a policy by saying, “I read on Facebook . . .” or “I Googled [such and such], and you are doing it wrong.” Here are some of the issues we’re hearing about lately.
‘You Can’t Make Me Tell You if I’ve Been Exposed to COVID-19’
That is incorrect. As part of your obligations to create a safe work environment under the Occupational Safety and Health Act (OSH Act) as well as more general public health concerns, you may continue to check and ask employees if they have been exposed to COVID-19.
‘You Can’t Ask Me About the Virus Because That’s HIPAA’
Nope. First, if they’re being treated as patients, then the provider’s documentation and knowledge about their healthcare status would be considered protected by the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act. That would be true if they’re receiving reimbursements through a flexible spending account (FSA) or insurance. Covered entities such as healthcare providers and insurance companies are subject to HIPAA and the HITECH Act.
Information obtained as part of their employment, however, including workers’ compensation details and questions such as whether you currently have a fever, aren’t covered by HIPAA or the HITECH Act because those are employment issues.
‘I Don’t Have Any Symptoms, So You Can’t Keep Me Out of Work’
Not true. Some COVID-19 cases are asymptomatic. If employees have had a direct exposure or a positive coronavirus test, you can keep them out of work for the appropriate period even if they don’t have symptoms.
‘You Sent Me Home, So You Have to Pay Me’
There are some differences between how exempt (salaried) and nonexempt (hourly) employees are paid if you send them home from work and they have no paid time off (PTO) available. If PTO is available, however, you can require them to use it. You may encounter other issues, too, depending on whether other paid leave is available (e.g., under the Families First Coronavirus Response Act).
‘I Don’t Have to Tell You if I Get the Vaccine’
As an employer, you can (1) inquire whether an employee has received the COVID-19 vaccine and (2) request proof of vaccination, particularly for people in healthcare or forward-facing jobs in retail or who work in close proximity to others. Many employers are developing policies to incentivize vaccinations for the coronavirus as well as the flu, and proof would be needed before any prize could be claimed.
‘I Don’t Have to Tell You Why I’m Not Getting Vaccinated’
Correct, unless you as the employer are mandating the vaccines. If you’re simply encouraging employees to get the shots, they don’t have to tell you why they’re choosing not to get one. You shouldn’t ask because there’s no direct business-related purpose to need the information. If you ‘re mandating the vaccines, employees would need to apply for an exemption generally either under the Americans with Disabilities Act (ADA) or for religious reasons.
‘You Can’t Make Me Tell You if I Travel’
People heading overseas by plane continue to face travel restrictions. You can inquire about the trip and the method of travel. You also can impose return-to-work requirements based on the current status of the COVID-19 pandemic.
Bottom Line
The types of sentiments you’re hearing from employees appear to go in cycles, but the answers remain fairly consistent. To ensure the safety of employees, vendors, and customers, you may collect some basic information. Be sure any employee health information is stored securely, but the big picture is you can gather certain data to keep your workforce safe.
Jo Ellen Whitney is an attorney with the Davis Brown Law Firm in Des Moines, Iowa. You can reach her at joellenwhitney@davisbrownlaw.com.