COVID-19 in the Workplace: Employers Caught Between Duty of Privacy and Duty to Warn

Jun 2, 2020 | Covid-19

Sara goes in for her shift at ABC Delivery Services, Inc, where she helps with package handling in the warehouse and managing administrative work in the office. Unbeknownst to Sara, her co-worker Tom, has not been feeling well for the past few days and after seeking medical care is diagnosed with COVID-19. Tom tells ABC Delivery’s management, but they decide not to disclose Tom’s diagnosis to other employees, including those like Sara with whom he worked closely, due to his privacy rights.

Sara continues to work but a few days later falls ill and is diagnosed with COVID-19. Sara is told by ABC Delivery to stay home for at least two weeks, where she lives with her four family members. After a week, Sara’s elderly father, Walter, who has stayed home since the quarantine went into effect due to his preexisting medical conditions, becomes severely ill and is diagnosed with COVID-19, despite Sara’s attempts to quarantine herself from her father. He is placed on a respirator and requires several weeks of hospitalization to stabilize his condition. He continues to suffer from breathing issues.

Is ABC Delivery liable to Walter for not warning Sara or her family about Tom’s positive diagnosis of COVID-19?  Can ABC Delivery stand behind Tom’s right to his medical privacy to avoid liability?

 Do Employers Have a Duty to Warn Employees and their Families of COVID-19 in the Workplace?

COVID-19 presents new, unanticipated liability risks for employers. Unlike a typical worker’s compensation claim alleging physical injuries suffered by an employee, such as a broken leg, COVID-19 is transmittable to others who come in close contact with the infected person, such as an employee’s family and household members. Though employees like Sara are barred from filing suit against their employers due to worker’s compensation statutes, non-employees are not barred from suit. Employers should expect to see an increase in civil liability claims filed by family members and other household members alleging to have contracted COVID-19 from the employer through their contact with an employee.

Despite the novelty of COVID-19, there is a body of case law which suggests that an employer has a duty to warn an employee’s family or household member when there is a known transmittable health risk present at an employer’s establishment and that the employer may be liable for failure to warn.

Employer Had Duty to Warn Employee’s Family Member (Known Contagious Disease)

In Wojcik v. Aluminum Co. of Am., 183 N.Y.S.2d 351 (New York Sup. Ct. 1959), an employer hired a doctor to provide medical examinations to employees including Mr. Wojcik, who was found to have tuberculosis. The doctor (an agent of the employer) did not inform Mr. Wojcik or his wife. Plaintiffs filed suit against the employer alleging negligence based upon a failure to warn, that if she had been properly warned she would have been able to take steps to avoid contracting the disease, and that the failure of the employer to warn resulted in her contracting tuberculosis and incurring significant costs for medical care and serious, painful injuries. The court held that the employer had a duty of care to the plaintiff (wife):

It is common knowledge that tuberculosis is a contagious and communicable disease. The risk of the plaintiff (wife) contracting tuberculosis from her husband, when unaware that he was so afflicted, was reasonably foreseeable by the defendant… the defendant could have reasonably anticipated that the plaintiff (husband), without knowledge of his contagious disease, would not take the precautionary measures necessary to prevent infecting others, including his wife, with the germs of the disease. The defendant’s negligent conduct toward the husband under the circumstances was negligence to the wife.

 Employer’s Duty to Warn Non-Employees (Asbestos “Take-Home” Exposure)

In Quisenberry v. Huntington Ingalls, Inc., 296 Va. 233 (2018), the Virginia Supreme Court held that a duty of care is owed by an employer that extends beyond employees to any family members or third parties who may be affected by the employer’s action. In the case, the employee’s daughter had been regularly exposed to asbestos dust from the employee’s work clothes, resulting in the daughter’s developing an asbestos-related disease due to her exposure to asbestos dust carried home on his clothing.

Physicians Duty to Warn to Non-Patients of Communicable Diseases

In Mussivand v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989), the Ohio Supreme Court held that a physician’s duty of care to prevent the spread of communicable disease (in this case – tuberculosis) has been long imposed by the courts. The court held that, “the general principle is well established that a person who negligently exposes another to an infectious or contagious disease…is liable in damages therefor.” The court referenced numerous examples of existing precedent placing a duty to warn upon physicians, including prior cases related to smallpox, scarlet fever, and valley fever.

Homeowner/Landlord Duty to Warn Tenants of Known Communicable Diseases

In Earle v. Kuklo, 26 N.J. Super. 471, 98 A.2d 107 (App. Div. 1953), the New Jersey Supreme Court found that there was a duty placed upon landlords to warn their tenants of communicable diseases known to exist at the premises, such as tuberculosis. The court, citing a string of turn of 19th and early 20th century cases, held that a failure to warn results in liability to any tenant who contracts the disease.

These cases and many others like them highlight the very real potential for civil claims against employers for an employer’s failure to warn those who may be at risk of contracting COVID-19 from an employee known to be infected.

Employers Have a Duty to Maintain Employee Privacy

An employer’s duty to warn of a known risks of COVID-19 infection needs to be weighed against another legal duty placed on employers – the duty to maintain the medical privacy rights of its employees.

Under the Americans With Disabilities Act, an employer may inquire of an employee about his or her medical condition or request an employee undergo a medical examination in certain circumstances in which the employer believes, based on the best available objective evidence and an individual assessment of the employees ability to safely perform the essential functions of his or her job, that the employee poses a “direct threat” (a significant risk of substantial harm) to other employees. To determine whether an employee poses a direct threat, the employer should consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and, (4) the imminence of the potential harm. Given the objective evidence known to date about COVID-19, it is reasonable for an employer to determine that an employee infected with COVID-19 may present a “direct threat” to other employees.

The ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination, as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in proscribed limited circumstances. Similarly, the Family Medical Leave Act prevents the disclosure of records related to medical histories in connection with an employee’s leave request or eligibility. A violation of an employee’s medical confidentiality may give rise to a cause of action for civil damages under the ADA or FMLA.

Notably, while the ADA provides guidance to employers with regard to medical inquiries in circumstances where an employee poses a “direct threat” to other employees, there are no specific regulations that detail when or how an employer may disclose known health risks to other employees (and by extension, to their family members).

General guidelines provided by OSHA are similarly conflicting.  The General Duty Clause listed in Section 5(A)(1) of the Occupation Safety and Administration Act of 1970 states than an employer, “[s]hall furnish to each of its employees and a workplace that is free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Given that COVID-19 arguably constitutes such a hazard, OSHA has recently published “Guidance on Preparing Workplaces for COVID-19.” While the 35-page document provides guidance on the reducing the risk of exposure, job classifications pertaining to risk level, and the potential effects on workplaces, it does not provide any information on how, when or who an employer show be disclosing employee diagnoses of COVID-19 to other employees who are at risk of contracting the virus.

Similarly, while many states are offering guidance to employers on COVID-19 prevention in the workplace and when employees should not report to work, there does not appear to be any information providing instruction to employers as to warning co-workers of infected employees. States appear to follow the general guidelines set out by the CDC and OSHA that, as we’ve seen, lack direction on warning other employees.

Weighing the Options: What Should an Employer Do?

With the lack of guidance, an employer is in between a rock and a hard place: it has a common law duty to warn employees and their families of known health hazards, including communicable diseases such as COVID-19, while also having a duty to maintain its employee’s privacy rights.

Employers are advised to tread lightly when it comes to specific disclosure of an employee’s medical condition, including COVID-19. In weighing the risks of tort liability against civil liability for disclosure, an employer should generally err towards providing notice to employees of a known incidence of COVID-19 infection. Employers may wish to provide notice to limited groups of employees which are more likely to contract the virus, and are advised to work with physicians or trained health professionals to identify risk factors that should be considered. Considerations employers should evaluate can vary depending on the nature of the business, the nature and degree of a diagnosed employee’s interaction with co-workers, and the timing and manner of such notice. In providing notice, employers should do so without disclosing a specific employees positive diagnosis.

Employers are advised to be proactive, by immediately establishing clear written policies applicable to all employees. Employers have the right to require employees to inform them of any positive diagnosis for communicable diseases, such as COVID-19, that may reasonably be transmitted from one employee to others in the ordinary course of the employee’s duties. Employers should establish a policy requiring employees to inform the employer of any symptoms they may experience. If employers become aware of employees who have potential symptoms related to COVID-19, employers should outline that the above factors will be considered making inquiries or requesting medical examinations. Employers should plainly state within any policy that upon learning of an incidence of COVID-19 within the workplace, notice will be provided to employees based upon risk factors, that the nature of this notice will vary depending on risk factors and that no individual employee’s diagnosis will be disclosed.

With the acknowledgement that each state and municipality has varying laws and guidelines that should be followed in conjunction with ADA, CDC and OSHA guidelines, our team at CMBG3 Law can help individual businesses make sense of these guidelines and help create a risk avoidance plan that minimizes the employers’ risks of civil liability for failure to warn and violations of privacy. Contact us to help with your business’s risk avoidance and disclosure procedures tailored specifically to your company or industry.

Authored By:

Tori Paiva

and

Eric J. Robbie, Esq.

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