Can employers tell people when employees are sick?

October 27, 2009 11:45 AM

My employer just asked us to contact HR if any of our employees are diagnosed with H1N1 flu. Is this allowable under HIPAA?

It was kind of a weird email that came not from HR-on-high, but from a local HR manager. Are managers even allowed to ask this question? If they come across it somehow ("hey boss, I have pig flu, be back in a week"), can they pass it along? I don't know HIPAA that well, but this seems to be a violation...

posted by um_maverick to work & money (10 answers total)

My understanding (IANAL) is that they cannot tell your coworkers that you specifically are sick, but they can tell everyone that someone has experienced symptoms and offer general tips for avoiding spreading disease.
posted by decathecting at 11:51 AM on October 27, 2009

My understanding is that HIPAA prevents health care providers or insurance companies from disclosing certain information to certain people. It doesn't prevent an employer from soliciting this info from employees directly--it would, however, be illegal if you were calling Blue Cross to see which if your employees had gone in for treatment and they furnished you with this information. See here.

NB Certainly I think it would be reasonable when communicating this to HR to simply say "we have had confirmed swine flu cases in the New York office" rather than saying "Joe Bob had swine flu and was out for a week."
posted by phoenixy at 11:53 AM on October 27, 2009

phoenixy is most likely correct. Most workplaces are going through pandemic preparedness exercises. HR has most likely been tasked with keeping tally of the total number of employees currently off sick with flu-like symptoms.

At a certain point, they will have to determine whether it is worth keeping the doors open. Sure, there are probably more effective ways to do this but low-tech solutions like this are probably the easiest to implement.
posted by purephase at 11:57 AM on October 27, 2009

There is another problem with the request in that most cases of flu-like illnesses are treated as if they were H1N1, but not actually confirmed with testing. In fact, the CDC recommends against routine testing for most people and goes on to point out that the most common rapid test is not particularly sensitive when it comes to detecting H1N1. So even if someone has flu-like symptoms, they probably won't know if they have the flu or not.
posted by TedW at 12:00 PM on October 27, 2009

I'm pretty sure that if they are only asking you to let them know directly, and there are not any repercussions if you don't disclose, they have done nothing remotely wrong or illegal. IANAL or an HR person.
posted by katemcd at 12:15 PM on October 27, 2009

It is probably related to their planning. My current client has been doing something similar for 2 months now.

(and... the kids started having flu issues last night, continued to today and now the missus and I have headaches, fever, etc... weee...)
posted by jkaczor at 1:36 PM on October 27, 2009

As phoenixy says, the Federal HIPAA rule applies only to certain types of companies. It does not prevent an employer from disclosing medical information.

But there is another key point: each state is different when it comes to its own privacy laws.

Subject to that, every employer at this point has a legitimate interest in knowing whether an infected employee is present in the workplace and thus may present a hazard to others.

When an employee calls in sick, and is not at the workplace, I think the employer's legitimate interest ends.

And the inquiry should be about any flu-like symptoms, porcine or otherwise.
posted by yclipse at 2:10 PM on October 27, 2009

H1N1 is a contagious illness, and there may be a requirement to report it. Your company may have a disaster plan that includes "What if a lot of people have the flu?"
posted by theora55 at 3:21 PM on October 27, 2009

FWIW, I just took H1N1 training today. My company (very large, everything goes through Legal) asks that if we get this flu, we call it in to our Health, Safety, and Environment (HSE) Manager while quarantining ourselves from the office for 7 days, or until 24-48 hours have passed without a temperature over 100 degrees.

They explained that the reason is, the incubation period can be 3-7 days in length -- that is, you can have it without symptoms for several days, going to work and possibly infecting others. So, HSE wants to notify coworkers that they have possibly been exposed and should watch for symptoms and take additional precautions. They don't tell your coworkers who got the flu, just that "a" coworker got it.

So, let's say you work on Floor 5 of Building A. If someone on your floor gets this virus, you get an email that says something to this effect: "One of your coworkers on Floor 5 of Building A has contracted the H1N1 virus. Please remember to use the instant hand sanitizers we've placed on every floor, and remember to cover your nose and mouth when coughing or sneezing. If you experience any flu-like symptoms, please leave the office, telephone your physician, and do not return to work for 7 days or until you are fever-free for at least 24 hours."

I understand the concern you have, but if your company is setting up a similar plan, it's really just kind of reasonable.
posted by Houstonian at 6:22 PM on October 27, 2009 [1 favorite]

Ditto what Houstonian said. I didn't go through training today, but I also work for a very large organization whose legal department has been actively involved in our H1N1 preparation. To the best of my knowledge, they were supportive when EH&S and HR suggested this kind of communication and notification.
posted by Lexica at 9:08 PM on October 29, 2009