‘That’s the Reality’

Employees Suing Over COVID Disclosures in the Workplace

By Tammy Joyner

A showdown is brewing between workers and employers.

As COVID-19 rages on, more employees are contracting the virus yet are being forced to keep quiet about outbreaks on the job, experts told Digital Privacy News.

Companies are using privacy laws to keep workers from alerting others about the life-threatening virus, they said.

Undeterred, workers are fighting back with complaints and lawsuits.

“Employers who are invoking privacy concerns are really using it as a smokescreen to protect their own bottom lines — in particular, to cover up the ways they’re failing to protect workers,” Hugh Baran, staff attorney with the National Employment Law Project (NELP) in New York, told Digital Privacy News.

“The reality is there’s no requirement that companies silence employees.”

Gagging Workers With HIPPA

Employers are erroneously using such federal laws as the Health Insurance Portability and Accountability Act (HIPAA) to gag workers, Baran said. In fact, he added, federal law allows workers to communicate working conditions and protest those conditions.

“Companies can’t keep workers from talking about it,” said Kathleen Anderson, a labor, employment, and litigation partner at Barnes & Thornburg in Fort Wayne, Ind.

“Under the law, employers have to keep personal medical information private,” she added. “I can’t reveal it unless you reveal it.

“Well, we’re in a pandemic — and employers also have an obligation to keep people safe.”

Tracking Cases

Anderson is part of a Barnes & Thornburg team that is tracking 400 COVID-related complaints and lawsuits nationwide.

“Those aren’t all of them,” she told Digital Privacy News. “There are substantially more cases. These are the ones we thought would be constructive.”

“We’re in a pandemic — and employers also have an obligation to keep people safe.”

Kathleen Anderson, Barnes & Thornburg.

The issue is unlike anything Anderson said she had seen in 28 years of practicing law.

“This is a new environment we’re in,” she said. “We’ve never seen this sort of event that has affected every part of life, including the litigation docket.

“I don’t think companies are trying to silence workers about COVID matters on the job,” Anderson added, however. “I think they are trying to balance the requirements of individuals’ privacy and public safety.

“This is a difficult time for workers and employers alike.”

Many Other Challenges

This new environment has challenges, legal experts told Digital Privacy News.

Laws protecting workers’ rights to speak up about working conditions are lax — and many workers aren’t aware of their rights. As a result, companies are getting away with silencing workers, experts said.

“Essentially, workers have been left on their own without the federal government to protect them,” NELP’s Baran said.

“So, if your employer’s telling you, ‘You need to shut up about COVID or you’re going to lose your job,’ and you’re worried about providing for your family and putting food on the table, you’re going to be quiet.

“The reality is there’s no requirement that companies silence employees.”

Hugh Baran, National Employment Law Project.

“That’s the reality,” he said.

The companies trying to muzzle workers reads like a who’s who of corporate America: Amazon, Cargill, The Cheesecake Factory, McDonald’s and Target, according to an August Bloomberg Businessweek magazine report detailing how corporate COVID gag rules were risking worker safety.

In addition, one in eight workers has perceived possible retaliatory actions by employers against workers who raised health and safety concerns during the pandemic, according to a June NELP report.

The national survey showed that retaliation against whistleblowers has been prevalent during the pandemic.

Safety vs. Profits

Preserving the corporate bottom line has been costly for many essential and frontline workers.

Consider the food-system industry.

As of Wednesday, at least 65,131 meatpacking, food-processing and farmworkers have tested positive for COVID-19, according to the Food and Environment Reporting Network, which has been tracking such cases and deaths in the industries since April.

At least 268 of those employees have died.

But workers are refusing to be quiet.

As of Tuesday, 3,174 coronavirus-related whistleblower complaints had been filed with the U.S. Labor Department. Complaints span from safety concerns to gag orders barring workers from discussing outbreaks. 

In addition, 5,479 complaints alleging that workers were exposed or potentially exposed to the virus have been filed as of Monday, according to the Hunton Andrews Kurth law firm in Richmond, Va.

Lobbying Congress

As worker claims build, companies are lobbying Congress to “give them sweeping protections from lawsuits that area alleging employers have failed to keep their workers safe during the pandemic,” NELP’s Baran said.

“Each claim will depend on its facts and the particular laws of the jurisdiction deciding the case.”

Mary Anne Bobinski, Emory University School of Law.

Additionally, several states have enacted liability shields or limits on COVID-related claims — and Congress also is considering whether to enact limits on liability, said Mary Anne Bobinski, dean and the Asa Griggs Candler professor of law at Emory University School of Law in Atlanta.

“These new rules would have to be studied carefully to determine whether they would prevent actions by employees against employers,” she told Digital Privacy News.

Going forward, it’s unclear whether some of the claims will be successful, experts said. Many cases might be handled through arbitrators versus the courts.

“Each claim will depend on its facts and the particular laws of the jurisdiction deciding the case,” Bobinski said. “For example, from a factual standpoint, it may be difficult to prove that a person acquired COVID-19 in the workplace.”

But Baran countered that cases brought by workers found to have merit would likely end up in arbitration.

“In theory, pretty-much any claim you bring against your employer must go to an arbitrator — and there’s no judge or jury,” Baran said.

“It depends on the case and whether employers use forced arbitration whether these cases go to court,” he added. “The majority of nonunion workers are subject to forced arbitration.”

Know Your Rights

Two federal statutes protect employees at work, said Hugh Baran of the National Employment Law Project.

  • The Occupational Safety and Health Act of 1970, which ensures safe and healthful working conditions by setting and enforcing standards and by providing training, outreach, education and assistance. It also protects whistleblowers once they come forward.
  • The 85-year-old National Labor Relations Act, which is the main law that creates the right to organize and form unions. It also protects workers’ ability to engage in concerted, collective activity for mutual aid and protection.

“Those two statues supersede a company’s right to gag workers,” Baran told Digital Privacy News.

Other federal laws also give workers the right to talk about communicating their working conditions — even protesting those conditions, Baran said.

They are:

  • The Centers for Disease Control and Prevention requires companies to “inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by Americans with Disabilities Act.

But under CDC guidelines, employers can alert workers who may have been exposed to the virus without disclosing the other employee’s identity.

  • The Americans with Disabilities Act, which covers many workplaces. It generally requires companies to keep workers’ health information confidential.
  • The Health Insurance Portability and Accountability Act primarily deals with personally identifiable health information held by health agencies and their business associates.

These organizations generally are barred from disclosing personally identifiable health information. There are exceptions, though, such as when disclosure is required by law or where it is necessary to prevent a serious threat to health and safety.

— Tammy Joyner

Sources: Hugh Baran, NELP. Mary Anne Bobinski, Emory University School of Law.

Tammy Joyner is an Atlanta writer.

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