In response to the COVID-19 pandemic, the Secretary of the Puerto Rico Department of Labor and Human Resources issued guidance that specifically allows employers to take an employee's body temperature provided they secure the individual's express consent. Similarly, the U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance to expressly permit employers to implement temperature-screening measures given the current pandemic situation. The EEOC's guidance acknowledges that generally, such screening constitutes a medical examination under the Americans with Disabilities Act (ADA). The EEOC explains, however, that "[b]ecause the CDC [Centers for Disease Control and Prevention] and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature."
In view of the recent guidance and the fact that many employers in Puerto Rico have, in fact, implemented such measures, the following questions need to be considered:
If an employer collects employee temperature information, is that information protected by HIPAA?
No. The Health Insurance Portability and Accountability Act's (HIPAA) privacy rule controls how a health plan or a covered health care provider shares an individual's protected health information with an employer. An employer is generally not a HIPAA-covered entity nor a business associate subject to the HIPAA privacy rule. In fact, even for employers that are a health plan or a covered health care provider, employment records are not covered by HIPAA's privacy rule.1
Who should administer or facilitate the temperature tests?
If the employer has access to someone who is a health care provider or has health care training, that person should perform the tests. The person should be aware of the confidentiality protections of the test results gathered. In order to secure the test-taker's safety, employers should, among other precautions, consider OSHA's personal protective equipment standard, which requires using gloves, eye and face protection, and respiratory protection, as well as applicable trainings. Another alternative to consider is for employees to self-administer the test and provide the results to a person facilitating the test.
Are there any other confidentiality obligations an employer must observe in connection to this information?
The ADA requires employers to maintain the confidentiality of all medical-related information obtained from their employees and to keep the same separate from their personnel files subject to certain narrow exceptions. Also, the Genetic Information Nondiscrimination Act (GINA) requires employers to keep employees' genetic information "on separate forms and in separate medical files and be treated as a confidential medical record of the employee." These confidentiality provisions are subject to exceptions pursuant to GINA Regulations. Similarly, P.R. Act No. 107 of September 9, 2013 ("Act 107"), which prohibits employers from requesting genetic information of an individual employee, also requires employers to maintain any genetic information in a separate file treated as a confidential medical file. P.R. Laws Ann. tit. 29, § 1353.
Additionally, employers should keep in mind Article II, section 8 of the Puerto Rico Constitution, which expressly acknowledges the right to privacy of all citizens. This right is innate and inherent to all people and considered by the Puerto Rico Supreme Court as being of the "highest hierarchy" among all constitutional rights. It is also enforceable between private parties ex proprio vigore, without the need for enabling legislation. Thus, a violation of an employee's right to privacy is actionable as a tort under this provision.
How much information can be disclosed to co-workers if an employee is sent home with a fever?
Generally, an employer may not disclose medical-related information to co-workers. However, and considering the current COVID-19 situation, according to the CDC,
if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
With regards to the limited exceptions under the ADA for disclosing medical-related information, the EEOC's ADA regulation 1630.14(d)(4)(i) says that any medical information regarding the medical condition of an employee shall be treated as a confidential medical record, except:
- Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
- First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
- Government officials investigating compliance with this part shall be provided relevant information upon request.
While keeping the above in mind, employers should be extremely careful with the information they disclose to their workforce about another employee's medical information while at the same time balancing the CDC guidelines.
What happens if employees refuse to have their body temperatures taken?
Because employees in Puerto Rico must expressly consent prior to having their temperature taken by employers, employees who refuse may not be forced to do so. Upon the employee's refusal to participate in the screening, employers may limit the employee's access to the workplace while at the same time carefully assessing whether there are any potential alternatives for this employee to work from home. Otherwise, the employer should consider if this employee would be eligible for any paid or unpaid leaves.
Employers implementing measures such as taking an employee's body temperature during the COVID-19 pandemic may want to consider compensating the employee for time spent waiting for and having the temperature taken to discourage employees from potentially opposing the screening. Additionally, employers should keep these recommendations in mind, particularly the need for the employee's express consent, and assess the particular situation of their business and employees on a case-by-case basis.
1 For more information on the HIPAA Privacy rule and COVID-19, see https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf.
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