Human resources managers are quickly finding that one of the greatest challenges of the COVID-19 era is figuring out how to comply with the confidentiality guidelines of the Americans with Disabilities Act (ADA).
In this month’s edition of the HR Q&A Series, we offer tips on how to avoid ADA violations in two of the most common COVID-related scenarios facing employers today.
Scenario #1: Reporting exposures with confidentiality
“We took great precautions — social distancing, masking, encouraging staff vaccinations and more — but an employee in our office just reported that he tested positive for COVID-19. I know we need to report to employees who might be at risk, but how can we do this without violating ADA’s confidentiality guidelines?”
This is a situation that’s challenging to many HR managers because the confidentiality requirements of the ADA and the public health reporting requirements appear to be at odds. The ADA requires employers to keep all medical information about employees confidential, even if that information is not about a disability. And clearly, the information that an employee has a diagnosis of COVID-19 is medical information. At the same time, the Center for Disease Control (CDC) and state and local public health authorities require employers to take action in reporting COVID-19 cases to people who may have come into contact with the infected employee.
According to the U.S. Equal Employment Opportunity Commission (EEOC), when a COVID-19 exposure occurs, employers must take actions consistent with guidance from the public health authorities. In other words, even though information about a COVID-19 report is medical information under the ADA (and therefore confidential), a manager must still report it, given the public health mandate.
So the challenge for HR managers under ADA is not whether or not it should be reported, it’s how and what should be included in the report. According to the ADA guidelines, employers should make every effort to limit the number of people who learn the name of the employee. Therefore, HR managers must ensure two things: that this information is reported only to people who need to know because of a public health risk and that the information reported is job related and consistent with business necessity.
Let’s consider how this should play out in the scenario described above.
The first step is to determine who “needs to know” under public health guidelines, or which individuals are at risk for infection. The ADA does not interfere with the HR manager, or another designated representative of the employer, from interviewing the employee to get a list of people with whom the employee possibly had contact with through the workplace.
Let’s say an interview revealed that seven people, in an office of 60, may have come into contact with the employee. The next step is to notify those individuals who need to know about their risk of infection. It’s at this step that ADA guidelines play an important role. Employers under ADA must alert those seven employees without revealing the infected employee’s identity. The EEOC recommends using a “generic descriptor.” Employees could be told “someone in the marketing department” or "someone on the fourth floor" has COVID-19. The generic descriptor provides enough notice to meet the public health guidance, and doesn’t violate the ADA’s prohibition on disclosure of confidential medical information.
For small employers, maintaining confidentiality is obviously a greater challenge. Coworkers might be able to quickly figure out in a small office who may have COVID-19. But to comply with the ADA confidentiality guidelines, HR managers are still prohibited from confirming or revealing the employee’s identity. Furthermore, under ADA guidelines, it’s not just the HR manager who is prohibited from revealing the identity of the employee with COVID-19. Any supervisor or manager, who is designated as needing to know the identity of an employee, must be instructed to maintain the confidentiality of this information. Therefore, the EEOC advises HR managers to work with supervisors and managers to develop a plan on how to communicate COVID-19 cases to employees in a way that protects the identity of the employee.
Scenario #2: Incentivizing vaccinations and confidentiality risks
“As a company, we don’t want to mandate vaccinations, and with under 50 employees, we likely won’t qualify for any government vaccination mandates that are being discussed. However, we are thinking of offering an incentive for employees to get vaccinated, such as paying their hourly wage during the time it takes to get their shots or offering a paid day off. Is there any risk that this is a violation of ADA?”
During the recent months, as many employers have sought to increase staff vaccination rates or in anticipation of potential vaccine mandates, some have chosen to incentivize, rather than require their employees to get vaccinated. If you are an employer that is offering incentives, or considering this approach, it’s important to be aware of two possible violations of ADA confidentiality guidelines.
First, if you’re incentivizing employees to get vaccinated, it’s important to not be too generous. Your offer to pay an employee’s hourly wage is one thing. But a paid vacation to Cancun for a week is another. According to the EEOC, an incentive may only be offered under the ADA if it "is not so substantial as to be coercive." That’s because COVID-19 vaccinations require employees to answer pre-vaccination disability-related screening questions, and a very large incentive could make employees feel pressured to disclose protected medical information.
Second, if you’re asking employees about their vaccination status, it’s important to be careful about the questions you ask. The EEOC advises employers to avoid asking questions that could force an employee to divulge information about a disability. For example, questions such as, “Why haven’t you been vaccinated?” or “Did you have any vaccination side effects?” could reveal information about a disability, which could violate the ADA’s confidentiality guidelines.
This is not to say that you are not entitled to ask questions of employees. The EEOC has issued guidance that specifically says employers can ask workers about their vaccination status without triggering ADA. But the EEOC advises employers to assess why they need the information, how they may use it, and how the information could create potential discrimination issues before asking these questions. This is important because, if ADA is triggered, employers must be able to show that their need for the information is job-related and consistent with business necessity.
It’s because of these concerns that HR managers need to carefully script any questions, including follow-up questions, related to vaccine status.