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COVID Dilemma for Employers: Balancing Privacy While Keeping Workplaces Safe

By Joanne Cleaver

Last of two parts.

The coronavirus pandemic has created privacy issues for both employers and workers. Today’s report addresses the issues employers face in confirming the health of returning workers.

If any workspace should allow for social distancing, it should be a golf course.

That might explain why golf courses are among the first operations to re-open in the few states relaxing “safer-at-home” requirements, which put golf-course managers in the precedent-setting position of figuring out how to navigate tricky conversations with returning employees about their health.

The new rules of post-pandemic workplace health are starting to emerge — and human resources experts said that while standard employee-privacy rules remain the baseline, employers also must ask tough questions to ensure a safe workplace for all.

In Richmond, Ind., an hour east of Indianapolis, the city’s parks and recreation department opened its Highland Lake Golf Course on Tuesday, while keeping guests and staff at a club’s length.

“We’re following the CDC and Wayne County guidelines for re-opening all our amenities,” Parks Superintendent Denise C. Retz told Digital Privacy News.

Keeping Staff Informed

Retz has carried on conversations all spring with staff about their health status, even while ensuring that each person works alone in separate vehicles and in the field.

The golf course’s clubhouse will stay closed and tee-time reservations and fees are being handled online so onsite staff will not have to take paper money or break the six-foot rule on social distancing, she explained.

Communication, however, is as important as logistics: Retz said she informs parks and recreation staff directly about how they are feeling and faring during the pandemic, partly for their own sakes and in part so she can forecast who might be available to work.

“We just keep telling people, ‘We’ll be ready to serve you when we can,’” she told Digital Privacy News. “We’re the parks and rec department; that’s what we do.”

Employer Quandary

Employers at many soon-to-reopen organizations are sorting through similar issues. Ascertaining an employee’s health is tricky through the filters of video and current health directives, said Wade Symons, national practice leader for the regulatory resources group for Mercer, the global workplace policy and practices consulting firm.

After all, many Americans have been instructed to avoid testing for coronavirus unless they have presumptive symptoms.

The rationale is to keep mildly ill people from greater exposure to the virus, for which there is no cure, and to keep mildly symptomatic people from shedding the virus in public spaces.

But that also puts employers in the awkward position of having to determine the best way to confirm the health of returning workers.

Given the danger presented by COVID-19, people suspected of carrying it are considered a “direct threat,” in human resource terms, Symons told Digital Privacy News.

“… What if I find out that an employee has COVID 19? Then you have to find out who they’ve had contact with.”

— Wade Symons, national practice leader, Mercer.

Employers are not only allowed to ask returning staffers about symptoms, but have a responsibility to provide a safe workplace for everyone.

That explained why bosses are already speculating on how to “take employees’ temperatures before allowing them back into the workplace,” Symons said.

“Typically, an employee would feel that they’re protected from these types of medical evaluations — but now you’re not, because the goal is to protect the workplace.”

Doctor’s Note?

What about many employers’ longstanding requirement that employees ill for more than three days present a doctor’s note to return to work?

With primary-care physicians curtailing hours and many public-health leaders asking mildly ill people not to pursue formal COVID-19 testing, employees cannot provide the standard affirmations of illness and health.

Chances are employers will drop their usual requirements for physicians’ notes and rely instead on point-of-return testing, said Symons and Amber Clayton of the Society of Human Resource Management.

Even so, employers can only ask so much, even if co-workers observed one another coughing via teleconference. Employers can ask about symptoms but cannot directly ask if an employee has been diagnosed with coronavirus.

‘Minimum Necessary’

“We’re always focused on the ‘minimum necessary,’” Symons told Digital Privacy News. “That just means that you only share the minimum-necessary information to do the task at hand.

“In this case, what if I find out that an employee has COVID 19?” he posed. “Then you have to find out who they’ve had contact with.

“But I don’t need to tell the other employees who actually has COVID. (I) can just say, ‘You may have had contact with someone who has it’ without saying who.”

Evolving Directives

Employees and employers will continue to face evolving privacy directives, as the U.S. Centers for Disease Control and Prevention (CDC) and state and local public-health authorities change guidance as the pandemic crests and ebbs, said Karla Grossenbacher of the Washington office of the Seyfarth Shaw LLP law firm.

The main takeaway for workers, she said, is that employers now have to take cues about a high-stakes health situation from a national authority as well as local ones — and related workplace privacy policies will be interpreted and applied accordingly.

Grossenbacher told Digital Privacy News: “Certainly your employer can ask you anything the CDC wants to know — who you might have been exposed to — and you should comply with the standards required by the location where you will be.”

Joanne Cleaver is a writer in Charlotte, N.C.

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