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Throughout America right now, individuals are being informed by their employers that co-workers have tested positive for the novel coronavirus or may be experiencing symptoms consistent with COVID-19. Those internal memos may feel unsatisfactory and lead to natural follow-up questions: Exactly who tested positive? Was I in contact with that person? Do I need to self-isolate or get tested too?
In the age of a viral pandemic, health privacy has come in conflict with general welfare. Companies may experience pressure to disclose certain information while also feeling handcuffed. And in the entertainment community where there’s also tremendous public interest in the work environment, that tension between the wish to be transparent while maintaining confidences could feel especially acute.
“We have been advising workplace employers around the clock the last few days on these types of issues,” says Marta Fernandez, chair of the labor and employment department at Jeffer Mangels.
Although there’s no broad federal medical privacy law beyond HIPAA (which generally covers recipients of healthcare), attorneys say that various state laws (like California’s Confidentiality of Medical Information Act) plus common law make it advisable for an employer to never identify an employee who has contracted the virus. Besides privacy obligations, companies must also be conscious of tripping over workplace anti-discrimination statutes including the Americans with Disabilities Act.
On the other hand, Fernandez adds, “It would be negligent for an employer to just say they can’t disclose and sit back because they can’t do anything else.”
Throughout Hollywood, many productions are shutting down at the moment and sending workers home. But before that happened, according to Fenwick & West privacy attorney James Koenig, many employers wrestled with just how far to go in collecting information. He says some began taking temperatures while others conducted surveys. “When you get to questions like, ‘Tell us about others in you family’ or ‘Tell us what other locations you’ve been,’ now you are in a much riskier territory in terms of privacy,” he says.
But what to do with information that someone is sick?
Partly because COVID-19 has a latency period where symptoms may not be immediately felt, that information is important even for those who are now working at home. Additionally, getting tested isn’t easy. At the moment, in many regions throughout the country, individuals can only get tested if they are experiencing symptoms and have traveled to a known hotspot or come into contact with someone else who has tested positive. So having the information handy could be useful.
In light of that, many companies are coming to the decision to share at least some information with their workforce. At least, carefully.
“At this point, the information that the employer shares in this situation should be specific enough to give employees a sense for whether they might be at risk, but not so specific that it would be easy to identify the affected individual,” says Jo-Ellyn Sakowitz Klein, a privacy lawyer at Akin Gump. “In many situations, finding this balance could be tricky.”
It’s an even more delicate issue for the entertainment industry because often a performer’s work (e.g. attending film premieres, playing music onstage, doing interviews) is public-facing. Furthermore, this is a business where anyone suffering from COVID-19 becomes a headline. An internal memo is almost certain to leak into the public sphere. Nevertheless, without consent, entertainment studios face risks for disclosing the identities of those who have tested positive for coronavirus.
Interestingly, there seem to be exceptions to the rule of confidentiality.
This past week brought news that various NBA players (including Rudy Gobert and Kevin Durant) have tested positive. Many of them are accustomed to the release of their health status. In the NBA collective bargaining agreement, the players’ union consented to public disclosure of medical reasons why players are not rendering services.
Then, of course, there are famous folks like Tom Hanks and Idris Elba who are coming forward to self-disclose their diagnosis.
Says Crowell & Moring attorney Jeffrey Poston, “My sense is they are trying to do a public service, but there is no obligation for anyone to come forward.”
For his part in explaining the decision to come forward, Elba stressed the importance of “transparency,” adding, “I’m worried that people are going to stigmatize other people, I’m worried that we’re going to panic and send the whole world into a spin.”
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