Employee Privacy during COVID-19 in Pennsylvania, New Jersey, and New York

Employee Privacy during COVID-19 in Pennsylvania, New Jersey, and New York

By Michael Brumbach, Lisa Grandner and Andrew Ho. As America starts to get back to our new “normal”, some employers have already been taking precautions for the reopening of America’s businesses. Such precautions have included mask requirements, staggered work schedules, and temperature/fever tests. However, businesses may now find themselves in possession of health information and must keep in mind that there are significant legal ramifications when handling employee (or other) health data. With this in mind, the following article includes recommendations from the U.S. Equal Employment Opportunity Commission (EEOC) regarding COVID-19, as well as laws to look out for when dealing with employee health data. The most glaring protections of employee health data stem from the Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA.  However, recent developments in New York law, namely the SHIELD ACT, may have created new consequences for businesses that fail to properly protect their employee’s health information. HIPAA requires that employers keep medical records confidential, and isolate medical records from files that employees such as supervisors or managers may access. This information includes: health insurance documents, requests for medical leaves of absence, FMLA reports, documentation regarding the underlying matters for FMLA paperwork, physician’s examination reports, medically-related excuses for absenteeism, medical job restrictions, accident and injury reports, worker’s compensation reports, and any other document that contains private medical information about an employee. The Americans with Disabilities Act (ADA) requires that all medical information, including COVID-19 related documentation, for employees be stored separately from the employee’s personnel file. Businesses may maintain logs of temperature results, but they must keep this information confidential. However,...