It’s in the news, front and center. The novel coronavirus. The global death count raised over 3,000 and the number of confirmed cases surpassed 90,000 worldwide over the weekend. In the United States, two deaths and 80 cases have been reported since the weekend. But we’ve also been told not to panic, don’t blow it out of proportion, wash your hands. In Florida, Gov. Ron DeSantis declared a public health emergency after two ”presumptively positive” cases were reported in the Sunshine State on Sunday. A man in Manatee County and a woman in Hillsborough County were confirmed positive and are in stable condition. China quarantined 46 million of its citizens, the largest in human history. With all of these newsbreaks and continuous updates, understandably we are getting questions on the issues of HIPAA privacy rights and employment law as related to the coronavirus. What does the coronavirus mean for employment? What does it mean for businesses and employees?
HIPAA Applies Only to Covered Entities and Business Associates
Employers can face civil liability or even criminal penalties in the narrow event of a HIPAA violation. However, if there is a true risk of a worker infecting others, an exception exists when necessary to protect the lives of others. The HIPAA privacy rule also does not apply to employee records, even if the information in those records is health-related.
Further, and importantly, most employers are not covered entities or business associates as defined by HIPAA. The HIPAA Privacy Rule only applies to disclosures made by employees, volunteers, and other members of a covered entity’s or business associate’s workforce. Covered entities are health plans, health care clearinghouses, and those health care providers that conduct one or more covered health care transactions electronically, such as transmitting health care claims to a health plan. Business associates generally are persons or entities (other than members of the workforce of a covered entity) that perform functions or activities on behalf of, or provide certain services to, a covered entity that involve creating, receiving, maintaining, or transmitting protected health information. Business associates also include subcontractors that create, receive, maintain, or transmit protected health information on behalf of another business associate. The Privacy Rule does not apply to disclosures made by entities or other persons who are not covered entities or business associates (although such persons or entities are free to follow the standards on a voluntary basis if desired). Please see this helpful guidance from the U.S. Department of Health and Human Services Office for Civil Rights, released in February 2020: HIPAA Privacy and Novel Coronavirus.
Employer Duties Still Apply
Generally, and regardless of whether HIPAA applies, employers are advised to respect the sensitive nature of an employee’s medical situation, as such still implicates duties pertaining to the Americans with Disabilities Act, the Family and Medical Leave Act, the Florida Civil Rights Act, and other employment-related state and federal laws.
Therefore, prudence must be used when making employment-related decisions. A business can require an employee who traveled to an affected area or exhibits symptoms of coronavirus to present a doctor’s note certifying the employee is fit to return to work before allowing him back to the workplace. Rather than requesting medical diagnoses, ask whether the employee can return to work safely. The CDC recommends that workers with symptoms upon arrival from affected areas or who become ill during work travel should promptly go home until at least 24 hours after their fever is gone without the use of fever-reducing medications, or after symptoms have improved (at least four to five days after flu symptoms started). Symptoms may include respiratory distress and breathing difficulties, fever, and cough. Symptoms may appear within 2 to 14 days after exposure and some infected individuals have shown little to no symptoms.
What Can You Do?
As of now there is no vaccination or natural immunity available for the coronavirus. At this time, standard precautions are recommended: washing hands with soap and water for at least 20 seconds, or, if soap is not available, using hand sanitizer with 60% alcohol content; disinfecting touchable objects and surfaces; avoiding close contact with people who are sick; and staying home when sick. Employers would do well to allow individuals to work remotely with secure setups whenever possible, and especially when the appearance of coronavirus symptoms are questionable, even when mild.
Every situation is a bit different, and the overlapping application of several state and federal laws can create a bit of nuance. For additional information regarding these and similar employment-related legal matters, please feel free to reach out.
The information contained within is accurate as of the time of publication and does not necessarily represent the status of same at the time of reader viewing.
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