Is It Legal to Collect Employee Health Data?
NOTE: In considering questions that are legal in nature, Frontline Education is not providing a legal opinion. Each district should consult its legal counsel to determine the legality both under federal and state law of requiring COVID-19 information of staff members, and how that information can be used and disseminated.
As states and schools craft plans for whether and how to reopen in the fall, one critical element to such plans is how COVID-19 symptoms and cases are tracked. But you may wonder, is it even legal to collect and track this data?
The United States Equal Employment Opportunity Commission has issued guidance on what steps an employer may take to keep its workplace safe. According to that guidance and as of this writing, there are several actions an employer may take during this pandemic when it comes to collecting medical data about its employees:
- Asking employees if they are experiencing symptoms of COVID-19. Employers may ask employees if they are experiencing symptoms like fever, chills, cough, shortness of breath, or sore throat. As public health authorities release other recognized symptoms, such as loss of taste or smell, employers may add those to the list of symptoms asked about.
- Requiring employees to submit to temperature checks before entering the workplace. This is the case even though not everyone infected with COVID-19 suffers from a fever, or even displays any symptoms at all.
- Maintaining medical files on its employees. Employers may keep records about employees’ health, including symptoms, an employee’s statement that he or she has COVID-19, or other documentation from questioning an employee about COVID-19. Employers must maintain the confidentiality of this information and must store medical information separately from the employee’s employment file.
- Disclosing the name of an employee with COVID-19 to a public health agency. Again, it’s important to remember that this information may not be shared beyond public health agencies.
For further guidance, please consult your district’s legal counsel and the EEOC’s page about the coronavirus and COVID-19.