COVID-19 REPORTING: PRIVACY VERSUS PROTECTION

ABSTRACT

[...]we propose appropriate guidelines for organizations that balance their duty to maintain their employees' privacy and protect other employees and customers. Among these federal statutes are the Health Insurance Portability and Accountability Act of 1996, known as HIPAA14 which pertains to privacy rights for patients and medical record privacy, the Privacy Act of 197415 which pertains to personal information maintained by Federal agencies, and the Americans with Disabilities Act of 1990 (ADA)16 which prohibits employers from inquiring into the medical history or condition of applicants and prevents employers from discriminating against qualified individuals with a disability in regard to the terms, conditions, and privileges of employment. Some state statutes, like Wisconsin's right of privacy statute, explicitly acknowledge a right of privacy with respect to private medical information when the disclosure of such information would be highly offensive to a reasonable person.25 In Marino v. Arandell Corp., the court allowed an employee's privacy claim when his employer conducted prohibited medical inquiries about his condition, chronic Hepatitis C, and intentionally failed to maintain confidentiality with respect to his medical records.26 Nevertheless, some courts strictly construe the right to privacy. In Carter v. Tennant Co.,21 the court interpreted the Illinois Right to Privacy in the Workplace Act which prohibits any employer from inquiring into whether a prospective employee has ever filed a claim for benefits under the Illinois Worker's Compensation Act or the Illinois Workers' Occupational Diseases Act or received benefits under the Acts.28 Although the court acknowledged that the employer had questioned the prospective employee regarding whether he had suffered prior occupational injuries, lost time from work for a work-related injury or illness, or seen a medical doctor for any work-related injury or illness, the court denied the prospective employee's claim for a violation of the privacy act because the employer did not specifically ask whether the prospective employee had ever filed a workers compensation claim.29 Given the foregoing, an employee's right to privacy with respect to medical information is clear and compelling.