This content was published prior to the combination of Dentons Davis Brown. Learn more about Dentons Davis Brown. 

We all know that neither Google nor Facebook has a legal degree, but that doesn’t stop your employees from acting as if they do.  More than one employee pushes back on a policy saying, “I read on Facebook___” or “I Googled___ and you are doing it wrong.”  Here are some of the issues we’re hearing about lately.

“You can’t make me tell you if I’ve been exposed to COVID-19.” 

This is incorrect.  As part of your obligations to create a safe work environment under OSHA, as well as more general public health concerns, employers are allowed to continue to check and ask employees if they have been exposed to COVID-19. 

“You can’t ask me about the virus because that’s HIPAA.”

Nope.  If they are being treated as a patient, then the provider’s documentation and knowledge about their healthcare status are considered covered by HIPAA/HITECH.  This would also be true if the employee is receiving reimbursements through an FSA or insurance. Covered entities like healthcare providers and insurance companies are subject to HIPAA/HITECH. 

However, information obtained as part of your employment, including workers’ compensation information and questions such as whether you currently have a fever, are not covered by HIPAA/HITECH as they are employment issues.

“I don’t have any symptoms so you can’t keep me out of work.” 

Not true. There are asymptomatic COVID cases and if an employee has had a direct exposure or a positive COVID test, regardless of whether or not they have symptoms they can be kept out of work for the appropriate time period.  We recently reviewed the CDC rules in a post, “Not Normal Yet - COVID Spring Break 2021.”

“You sent me home, so you have to pay me.” 

There are some differences between how exempt (salaried) and non-exempt (hourly) employees are paid if they are sent home from work and they have no PTO available to them.  However, if PTO is available, you can require the employee to use PTO.  Depending on other paid leave available, such as leave under the FFCRA, there may be other issues as well.

“I don’t have to tell you if I get the vaccine.” 

As an employer, you can inquire as to whether or not your employees have had the vaccine and you can request proof of vaccination, particularly for people in healthcare or forward-facing jobs in retail, or positions where they work in close proximity to others.  Many employers are developing policies where they are incentivizing vaccination for COVID-19 as well as the flu and proof would be needed before any incentive would be provided. 

“I don’t have to tell you why I’m not getting vaccinated.” 

Correct, unless the employer is mandating vaccines. If it is a permissive process where you are simply encouraging vaccines, employees don’t have to tell you why they are choosing not to get one. You should not inquire about it as you have no direct business-related purpose to request that information. If you are mandating vaccines, employees would need to apply for an exemption generally under the ADA/ADAAA or religious reasons.

“You can’t make me tell you if I travel.” 

There continue to be travel restrictions for those persons traveling overseas by plane. You can inquire as to travel, the method of travel, and can impose return to work requirements based on the current status of the COVID-19 pandemic. 

The Big Picture

These types of sentiments appear to go in cycles, but the answers remain fairly consistent.  In order to ensure the safety of employees, vendors, and customers, you are entitled to collect some basic information. Employers should ensure that employee health information is stored securely, but the big picture: employers can collect data necessary to ensure the safety of their workforce.