H1N1

Hi,

A few of our employees have been diagnosed with H1N1.  We have posters, emails, etc regarding the flu and encouraging people to stay home if they are feeling ill.  We also provide employees with a very liberal work from home policy as well as a liberal leave policy.  Our problem is that co-workers of the flu-riddled employees are very upset that HR hasn't contacted them to tell them that their co-worker is out because of the flu.  Of course we have HIPPA concerns.  Any advice on what we can say to specific employees who work alongside of someone who has been diagnosed with H1N1?

Comments

  • 18 Comments sorted by Votes Date Added
  • [quote user="bwojt@menv.com"]

    Hi,

    A few of our employees have been diagnosed with H1N1.  We have posters, emails, etc regarding the flu and encouraging people to stay home if they are feeling ill.  We also provide employees with a very liberal work from home policy as well as a liberal leave policy.  Our problem is that co-workers of the flu-riddled employees are very upset that HR hasn't contacted them to tell them that their co-worker is out because of the flu.  Of course we have HIPPA concerns.  Any advice on what we can say to specific employees who work alongside of someone who has been diagnosed with H1N1?

    [/quote]

     

    You probably do not have HIPAA concerns unless you are a large enough company to be self-insured or unless you are an insurance company or medical provider.  Most employers' privacy concerns stem from ADA, not HIPAA.

     

    I don't think the employer can identify an individual as being out with a specific disease, even if it's communicable.

  • [quote user="bwojt@menv.com"]

    Hi,

    A few of our employees have been diagnosed with H1N1.  We have posters, emails, etc regarding the flu and encouraging people to stay home if they are feeling ill.  We also provide employees with a very liberal work from home policy as well as a liberal leave policy.  Our problem is that co-workers of the flu-riddled employees are very upset that HR hasn't contacted them to tell them that their co-worker is out because of the flu.  Of course we have HIPPA concerns.  Any advice on what we can say to specific employees who work alongside of someone who has been diagnosed with H1N1?

    [/quote]

    I sat through a webinar hosted by SHRM.  The attorney, Stephen Woods (Ogletree-Deakins), spoke about this very situation.  You can certainly notify employees who may have been exposed to the infected employee without violating HIPPAA.  He actually encouraged it.  However, you do not have any legal obligation to do so.  Hope this helps.  Good luck with that.

  • [quote user="mbaker01"]

    I sat through a webinar hosted by SHRM.  The attorney, Stephen Woods (Ogletree-Deakins), spoke about this very situation.  You can certainly notify employees who may have been exposed to the infected employee without violating HIPPAA.  He actually encouraged it.  However, you do not have any legal obligation to do so.  Hope this helps.  Good luck with that.

    [/quote]

     

    I think it's demonstrable that the SHRM attorney made an overly broad statement if that is exactly what he said.

    Generally speaking, ADA prohibits disclosing health conditions.  Also generally speaking, medical information is "sensitive personal information" under the data protection acts and cannot be disclosed without express written consent (e.g., by email).  As a practical matter, employers owe a duty of safety to their employees.

  • Actually, the more I read on this, the more I'm clear that ADA prohibits this disclosure, including in a recent EEOC letter on this very topic stating both that the employer has no duty to report and will have a liability for disclosure.

     

    Here's part of the regs that is on point:

    29 CFR 4, 1630.4(d)

    (d) Other acceptable examinations and inquiries. A covered entity 
    may conduct voluntary medical examinations and activities, including
    voluntary medical histories, which are part of an employee health
    program available to employees at the work site.
    (1) Information obtained under paragraph (d) of this section
    regarding the medical condition or history of any employee shall be
    collected and maintained on separate forms and in separate medical files
    and be treated as a confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary
    restrictions on the work or duties of the employee and necessary
    accommodations;
    (ii) First aid and safety personnel may be informed, when
    appropriate, if the disability might require emergency treatment; and
    (iii) Government officials investigating compliance with this part
    shall be provided relevant information on request.
    (2) Information obtained under paragraph (d) of this section
    regarding the medical condition or history of any employee shall not be
    used for any purpose inconsistent with this part.

     

     

     

  • Good points.  I reviewed the webinar again.  Stephen Woods did preface his comment with "if there is no state law prohibiting the disclosue." He very pointedly stated that when there is a confirmed H1N1 case, the first thing you do is clean the infected employee's work area and any public area that person came in contact with.  The second action is to tell the employees who were exposed to the infected individual of the confirmed H1N1 case and identify the individual....without disclosing any other medical details.  I am actually digging further into this myself because there seems to be conflicting information floating around for employers.

  • In speaking with a local EEOC officer, I have found the information I relayed from the webinar is outdated.  An employer is allowed to confirm there is/are H1N1 cases within the workforce, but the employer cannot identify the person(s) who are infected.  The EEOC recently posted clarification on the disclosure of H1N1 cases in the workplace.  Here is the link http://www.eeoc.gov/facts/pandemic_flu.html.  I have notified SHRM of the discrepancy so others will not be mislead.

  • I participated in a webinar today and the attorney mentioned over and over that with any actions taken relative to H1N1 that we as HR professionals need to be mindful of the legal aspects of things including ADA, HIPPA, etc.  The attorney was vague in many areas relative to what a company should do in certain circumstances and at one point suggested that legal counsel should be consulted.
  • [quote user="IT HR"]I participated in a webinar today and the attorney mentioned over and over that with any actions taken relative to H1N1 that we as HR professionals need to be mindful of the legal aspects of things including ADA, HIPPA, etc.  The attorney was vague in many areas relative to what a company should do in certain circumstances and at one point suggested that legal counsel should be consulted.[/quote]

     

    Attorneys are going to be wishy washy here because I don't think the tension between ADA privacy requirements and OSHA safety requirements (and other duties employers owe to their employees) have been resolved in the courts.

  • I don't see the problem for a company to make a blanket statement to its employees that there has been a confirmed case(s) of the H1N1 virus in the office.  You are not singling any employee out and/or violating that person's right to privacy.  As much as those people have the right to privacy, certainly the other employees in the office have a right to know what is going on.

     It is a stretch, but imagine if you don't notify your workplace and someone does catch the virus and are one of the unfortunate few who pass away from its effects.  You will then be looking at a completely different situation that could have easily been avoided.

  • [quote user="LHSsoccer13"]

    I don't see the problem for a company to make a blanket statement to its employees that there has been a confirmed case(s) of the H1N1 virus in the office.  You are not singling any employee out and/or violating that person's right to privacy.  As much as those people have the right to privacy, certainly the other employees in the office have a right to know what is going on.

     It is a stretch, but imagine if you don't notify your workplace and someone does catch the virus and are one of the unfortunate few who pass away from its effects.  You will then be looking at a completely different situation that could have easily been avoided.

    [/quote]

    What if the office is small enough that saying that someone is out with H1N1 would give all the employees constructive knowledge of who was out with H1N1?  I don't think there's any need to cite the source of the exposure, especially since they're not even in the office anymore.

     

    You could simply say that the office has been exposed to H1N1.

     

    The point you raise about someone dying from it would be exactly the sort of conflict between ADA and OSHA that has yet to be resolved.  On the other hand, it's not clear to me that the employer could have prevented that death by telling employees that a person who isn't in the office anymore exposed the office to H1N1 versus simply saying that the office has been exposed to H1N1 and to take appropriate precautions.


  • The Equal Employment Opportunity Commission (“EEOC”) recently published guidance regarding H1N1 and its relationship to the ADA.3 Whether someone infected with H1N1 has a disability under the ADA depends upon the severity and length of illness. The ADA also protects employees who are treated as though they have a disability even if no such disability exists. Therefore, an employee properly returning to work after a bout with H1N1 should not be treated as though she is a leper.
    The ADA also contains confidentiality restrictions. Regardless of whether H1N1 constitutes an ADA disability,
    employers must carefully protect the privacy of those employees suffering or believed to be suffering from H1N1. An employer can tell an employee's immediate supervisor that the employee has contracted H1N1 if necessary for the supervisor to implement safety precautions such as ensuring that exposed employees are monitoring potential symptoms. The EEOC's position is that an employer cannot, however, tell other co-workers that a specific employee has H1N1,4 although there may be a legitimate business need that makes it permissible to disclose that an employee may be out of the office for an extended period of time. 
    In circumstances of a flu pandemic as declared by the World Health Organization or the Centers for Disease Control, the EEOC advises:
    5

    it is permissible for employers to send home an employee who has influenza-like symptoms;
    employees who report that they are feeling ill or who call in sick may be asked whether they are experience influenza-like symptoms, such as fever or chills and a cough or sore throat, but this information must be maintained as confidential;
    employers may ask an absent employee the reason for the employee's absence;
    employers may require employees to adopt infection control practices, such as regular hand washing, or in some situations require the use of facemasks or other personal protective equipment;
    an employer may take its employees' temperatures;
    when an employee returns to work, it is permissible to require a doctor's note certifying fitness for duty. 
  • TXHRGuy, point well taken.  I was assuming that since the original post said that a few people were out, no one would be able to ascertain who it was that had the H1N1 and who was just out.

    Clearly it would be better to say that the office has been exposed to the virus, but then again, if the office is that small, everyone would be able to figure out who exposed the office to the virus.  Just another case of dang if you do and dang if you don't.

  • In reply to the comments by MBaker01 and TXHRGuy....

    I am the attorney for spoke on the SHRM webinar attended by MBaker01, and I am posting (1) to explain the reason for my webinar statements; and (2) clarify the EEOC's position -- and mine -- on employer disclosures of employee H1N1 diagnoses.  While I certainly hope this post is helpful, please understand that this is not legal advice and that it does not create any attorney-client relationship.  (Sorry:  the lawyer in me made me say that!) 

    After that SHRM webinar (on Tuesday, August 18), the EEOC began to clarify its position on employer disclosures of employee H1N1 diagnoses to co-workers, clients/the public, and patients.  See http://www.pandemicflu.gov/faq/workplace_questions/equal_employment/i9.html & http://www.pandemicflu.gov/faq/workplace_questions/equal_employment/i7.html

    When communicating with employees before, during, or after a pandemic, are there restrictions on the type of information that can be shared?<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

     
    . . . [U]nder the Americans with Disabilities Act (ADA), employers are required to keep employees’ medical information (e.g., information about the nature of an employee’s illness) <?xml:namespace prefix = st1 ns = "schemas-workshare-com/workshare" />confidential (i.e., maintained on a separate form and in a separate medical file).
     
    Business information regarding the status of an employee may be circulated to sustain operations so long as that information does not disclose confidential medical information about the employee.  For example, a business could communicate, for the purpose of business continuity, that an employee is not currently at work and that the employee may be out office for several weeks.

    This information is on www.pandemicflu.gov

    Strangely, although the EEOC's specific H1N1 guidance ("Pandemic Preparedness in the Workplace and the Americans with Disabilities Act") on the EEOC official website mentions medical examinations and medical inquiries, the official EEOC H1N1 guidance doesn't clearly state that employer disclosures aren't allowed.  In fact, the guidance on the official EEOC webiste seems to state the opposite:

    An inquiry is “disability-related” if it is likely to elicit information about a disability....  For example, asking an individual about symptoms of a cold or the seasonal flu is not likely to elicit information about a disability.

     All information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential.
    ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
    If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

    http://www.eeoc.gov/facts/pandemic_flu.html (emphasis added)

    So, there's conflicting information, even from the EEOC.

    Still, the EEOC -- through several of its offices -- is advising that employers may not disclose an employee's positive H1N1 diagnosis or H1N1 symptoms to co-workers, clients/the public, or patients.  Therefore, employers should be mindful of that position before making any disclosures.

    There are, however, many employers who wish to disclose, for a variety of reasons -- including the health of co-workers, employer credibility in the face of a pandemic, and continued business operations.  For those employers, there are indeed counter-arguments to the EEOC's position.  As you likely know, the EEOC’s guidance is not binding on courts, and courts are free to ignore the EEOC’s interpretation. See, e.g., <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Ky. Retirement Sys. v. EEOC, 128 S. Ct. 2361 (2008) (refusing to defer to the EEOC’s interpretation).

    I spoke on H1N1 at BLR's National Employment Law Update in Las Vegas a week or so ago, and addressed this topic and others.  In addition to the fine H1N1 materials provided by BLR, you may also wish to take a look at our Practical H1N1 Q&As, on the front page (right side) of our website. www.ogletreedeakins.com

    I hope this is helpful, and appreciate the opportunity to update the EEOC's position and offer some additional insight. 

    Stephen Woods

    stephen.woods@ogletreedeakins.com

  • [quote user="LHSsoccer13"]

    TXHRGuy, point well taken.  I was assuming that since the original post said that a few people were out, no one would be able to ascertain who it was that had the H1N1 and who was just out.

    Clearly it would be better to say that the office has been exposed to the virus, but then again, if the office is that small, everyone would be able to figure out who exposed the office to the virus.  Just another case of dang if you do and dang if you don't.

    [/quote]

    Not exactly.  Saying that the office has been eposed to H1N1 does not mean the exposure was caused by a fellow employee.  How you word the notification is important.

  • Thank you very much, Stephen for the clarification.
  • Stephen,

     

    Thank you for the update and clarification!

     

    -TX

  • One of my employees has been sick for several days. He went to the MD. The MD told him to call us and have us hold a meeting with all employees to tell them that the employee had (I think) type A influenza but no firm diagnosis of N1H1. We held the meeting and did not even think about the possibility of a HIPAA or ADA violation.

  • HR.BLR.com is offering a few white papers on H1N1 (Swine) Flu in the workplace for free. See:

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