How to address ongoing COVID-19 issues when employees declare, ‘But, Facebook said . . .’

We all know neither Google nor Facebook has a legal degree, but that doesn’t stop your employees from acting as if the social media platforms do. More than one employee has probably pushed back on a policy by saying, “I read on Facebook . . .” or “I Googled [such and such], 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’

That is incorrect. As part of your obligations to create a safe work environment under the Occupational Safety and Health Act (OSH Act) as well as more general public health concerns, you may 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. First, if they’re being treated as patients, then the provider’s documentation and knowledge about their healthcare status would be considered protected by the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act. That would be true if they’re receiving reimbursements through a flexible spending account (FSA) or insurance. Covered entities such as healthcare providers and insurance companies are subject to HIPAA and the HITECH Act.

Information obtained as part of their employment, however, including workers’ compensation details and questions such as whether you currently have a fever, aren’t covered by HIPAA or the HITECH Act because those are employment issues.