Many HR professionals are involved in a process they never imagined: contact tracing.
And the novelty of the situation is prompting questions to pop up in every workplace, industry and state: How far back should you trace? What role do state and local health departments play? If an employee tests positive, how deep of a dive is needed?
In the process of informing employees about COVID-19 exposure, HR may unintentionally expose its employer to legal trouble, mainly for violating confidentiality rules.
“It’s quite clear that you can’t disclose the identity of the [employee] who tested positive,” says Susan Kline, partner at Faegre Drinker law firm. “Probably 90% of the time employees figure it out on their own but the answer needs to be, ‘Cheryl is on approved leave, and we expect her back after a couple of weeks.’ Repeat it as often as needed.”
Some HR professionals have been pressured to release the names of employees who test positive; however, Kline says information obtained through contact tracing must be treated like a confidential medical record and kept separate from personnel files.
Meanwhile, HR should not underestimate the importance of choosing the right person to perform this type of detective work. Successful tracers not only guard employee privacy but also demonstrate a good bedside manner—consider selecting someone with a medical background for the job—and can solicit sensitive health information from workers without making them afraid that they or their co-workers will be fired or disciplined.
Likewise, focus inquiries on contacts that occurred during the workday, not when employees are off work or at lunch unless it’s on the premises. Otherwise, HR risks being branded as “Big Brother,” which can stir up legal issues surrounding privacy.
By now, an organization’s contact-tracing plan or policy should be developed, well-documented and in place. Being unprepared may lead to panic, anxiety and costly legal mistakes, Kline says. Just as important, clearly communicate to employees what contact tracing is, why it’s needed and what to expect to avoid surprises.
Also, HR can legally tell employees who test positive to self-quarantine offsite for 14 days. If they’re not symptomatic, Kline says, they can also be asked to work remotely.
“If the person refuses, which is like any refusal to work, it can be grounds for dismissal,” Kline says. But give them the benefit of the doubt. Ask why since there can be many legitimate reasons behind their decision.
Typically, employee dishonesty during contact tracing may also be grounds for termination.
“They have to be honest and cooperative,” says Kline. “You’re not asking for medical information, you’re only asking about close contacts while at work. That’s fair game.”