COVID-19: Can You Test Your Employees without Violating the Law?

Many employers are taking steps to protect their essential employees or making plans to protect employees upon reopening their businesses. Part of some employers’ plans may include checking temperatures or monitoring employee health to protect others from COVID-19.

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Does an employer violate HIPAA (The Health Insurance Portability and Accountability Act of 1996) by monitoring employee health?

It depends.

First, it’s important to note that only covered entities and business associates are subject to the HIPAA Privacy Rule, but employers are subject to other laws.

Can an ADA-covered employer take an employee’s temperature without violating the law?

Normally, taking an employee’s temperature is a medical examination. However, employers may take employee temperatures due to the spread of COVID-19.

But remember, employers have a duty to keep medical information separate from the employee’s personnel file and limit access to the file.

Can an employer test employees for COVID-19?

Yes, employers can take steps to determine if employees have COVID-19 to prevent the threat to other employees.

But again, remember to take precautions and protect the confidentiality of this information.

Also, remember that it is okay for an employer to disclose the name of an employee to a public health agency when the employee has COVID-19.

If you have questions regarding your business, COVID-19, or your employees, let us know.

And as always, when in doubt, ask your healthcare attorney. The current pandemic is temporary and OCR’s discretionary enforcement will not last forever.

In our next blog post, we will keep you informed of related issues.  To get this important information delivered directly to your mail box, click here to Subscribe.

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