The swine flu pandemic means that employers need information about employees who have swine flu, or who have been exposed to it, but what exactly can employers ask, and what are their obligations when they get an answer? Here are some answers to these and other frequently asked questions about the intersection between swine flu and workplace privacy.

Q: Is it a HIPAA violation to require employees to disclose whether they have swine flu, have symptoms of swine flu, or have been exposed to swine flu?

A: No. HIPAA does not apply to questions that an employer asks employees about their health. In the workplace, HIPAA applies only to individually identifiable health information created or received by, or on behalf of, the employer in its capacity as the administrator of a HIPAA-covered plan, such as self-insured group health, dental or vision plans; a health care reimbursement flexible spending account; or an employee assistance program. Put more succinctly, HIPAA applies only to individually identifiable health information created or received to administer a HIPAA-covered plan.

Q: Does any other law apply to an employer’s efforts to obtain information about whether an employee is, or maybe, infected with swine flu?

A: In certain circumstances described below, the Americans with Disabilities Act (ADA) will apply.

Q: Can an employer require that employees with symptoms of swine flu be tested?

A: Yes. Under the ADA, an employer who reasonably believes, based on an individualized assessment, that an employee has symptoms of swine flu can require that the employee undergo medical testing to determine whether the employee, in fact, is infected. Before requiring testing, the employer should be familiar with the symptoms of swine flu and have sufficient information to confirm that the employee has those symptoms. Any required testing must be limited to a test for swine flu. In addition, the employer is required to pay any costs associated with the test. The employer must treat the test results as confidential.

Note: The answer above is based upon the conservative assumption that the ADA’s restrictions on medical examinations of current employees applies regardless of whether swine flu is a “disability" as defined by the ADA. We are taking this conservative approach based on EEOC guidance which defines a "medical examination" as "a procedure or test that seeks information about an individual's physical or mental impairments or health" and provides as an example, "blood, urine, saliva, and hair analyses to detect disease or genetic markers." This definition would encompass the nasal swab test for swine flu. A court might find the EEOC’s guidance to be overbroad to the extent that it encompasses medical tests, like the test for swine flu, directed exclusively at discerning the presence of a temporary condition that is not subject to protection under the ADA.

Q: Can an employer require that employees who test positive for swine flu disclose the test results to the employer?

A: Yes. Under the ADA, an employer may require that an employee disclose health information bearing upon whether the employee poses a direct threat to the health or safety of himself or others. Because an employee with swine flu in the workplace would expose others to contagion and may aggravate the employee’s own illness, the employer can require disclosure. However, the employer must treat the positive test result as confidential.

There is one subtle distinction here: While the ADA applies when an employer requires that an employee be tested for swine flu, the ADA does not apply when the employer states that employees who have voluntarily had themselves tested for swine flu must share the results of the test for swine flu. The distinction is important because an employer that mishandles information protected by the ADA could be subject to a claim for violation of that statute which includes a fee-shifting position, whereas an employer who mishandles information not subject to the ADA might be subject only to a common law claim, which does not include fee-shifting.

Q: Can an employer require that an employee disclose whether he or she has been exposed to others who have tested positive for swine flu?

A: Yes. This inquiry does not require the employee to disclose any medical information about the employee.

Q: What can an employer tell co-workers about an employee who has been sent for testing, or who has tested positive, for swine flu?

A: The ADA requires that employers maintain the confidentiality of health information received from an employee in response to an employer-mandated disclosure. Consequently, an employer can not disclose to co-workers the identity of employees who have revealed symptoms of, or who have received a positive test result for, swine flu. An employer can tell co-workers who were exposed to the infected employee, without disclosing the infected employee’s identity, that these employees may have been exposed to swine flu and should monitor themselves for symptoms of swine flu.

As noted above, the ADA does not apply to a policy requiring that employees who have voluntarily undergone testing for swine flu disclose a positive test result. Nonetheless, as a practical matter, employers should treat as confidential the information received from employees pursuant to such a policy to encourage self-reporting.

Q: What can an employer tell managers or supervisors about an employee who has been sent home or has not been permitted to return to work because the employee is infected with swine flu or is demonstrating symptoms of swine flu?

A: The ADA generally prohibits an employer from disclosing an employee’s health condition to managers or supervisors. An employer can, however, tell a manager that the employee has been placed on leave for non-disciplinary reasons and for an indefinite period of time. The employer also can state that it will work with the manager to get the employee’s work covered and will inform the manager when the employee’s return date is known.

Q: What should an employer do when a manager or co-workers figure out that a specific employee has tested positive for swine flu even though the employer does not identify the employee — for example, because of the small size of the workforce?

A: An employer can not stop a manager or co-worker from speculating about why an employee has taken or been placed on leave. All an employer can do is take reasonable steps to protect the confidentiality of the positive test result by not identifying the employee by name and by avoiding, to the extent reasonably feasible, making other references that would permit a manager or co-workers to guess that an employee has been infected.

For additional insight and analysis, see Littler's ASAP, Swine Flu: Preparing the Workplace for a Pandemic, by Donald Benson and Steve McCown.

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