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.